3. The Party that considers that the amendments, additions or abrogations are in violation of the provisions of this Chapter may resort to the dispute settlement mechanism of Chapter XIX.
Article 9-21. Substantiation of the Procedure.
The Parties shall conduct investigation procedures on unfair practices exclusively through the competent national public agencies, agencies or entities.
Article 9-22. Settlement of Disputes.
Where the final decision of an arbitral tribunal declares that the application of an antidumping duty by a Party is inconsistent with any provision of this Chapter, the Party shall cease to apply or shall adjust the antidumping duty in question with respect to the goods of the complaining Party or Parties.
Chapter X. General Principles on Trade In Services
Article 10-01. Definitions
For the purposes of this chapter, the following definitions shall apply:
trade in services: the provision of a service:
a) from the territory of one Party to the territory of another Party;
b) in the territory of a Party to a consumer of another Party;
c) through the presence of service supplying enterprises of a Party in the territory of another Party;
d) by natural persons of a Party in the territory of another Party.
enterprise of a Party: an enterprise incorporated or organized under the laws of a Party, including branches located in the territory of a Party that carry out economic activities in that territory;
measures adopted or maintained by a Party: measures adopted or maintained by:
a) federal or central, state or departmental governments; and
b) non-governmental bodies exercising regulatory, administrative or other governmental authority delegated to them by those governments.
service supplier of a Party: a person of a Party who intends to supply or does supply a service;
quantitative restriction: a non-discriminatory measure that imposes limitations on:
a) the number of service providers, whether through a quota, monopoly or economic necessity test or by any other quantitative means; or
b) the operations of any service provider, either through a fee or a proof of economic need, or by any other quantitative means.
professional services: services that require education or higher education or training for their provision and whose exercise is authorized or restricted by a Party, but does not include services provided by those who practice a trade or to crew members of merchant ships and aircraft.
Article 10-02. Scope of Application.
1. This Chapter applies to measures that a Party adopts or maintains on trade in services conducted by service suppliers of another Party, including those relating to:
a) the production, distribution, marketing, sale and provision of a service;
b) the purchase, use or payment of a service;
c) access to and use of distribution and transportation systems;
d) access to public telecommunications services and the use of public telecommunications networks;
e) the presence in its territory of a service supplier of another Party; and
f) the granting of a bond or other form of financial guarantee as a condition for the provision of a service.
2. This chapter does not apply to:
a) subsidies or grants provided by a Party or a state enterprise, including government- supported loans, guarantees and insurance;
b) non-commercial services or governmental functions such as law enforcement, social rehabilitation services, income security or insurance, social security or insurance, social welfare, public education, public training, health and child care;
c) financial services.
3. Nothing in this chapter shall be construed to mean:
a) impose any obligation on a Party with respect to a national of another Party who seeks to enter its labor market or who has permanent employment in the territory of the receiving Party, or to confer any rights on such national with respect to such access or employment;
b) impose any obligation or confer any right on a Party with respect to government procurement by a Party or a State enterprise referred to in Chapter XV.
4. The provisions of this Chapter shall apply to the measures related to the services contemplated in Annexes 1 and 2 to this Article, only to the extent and under the terms established in those Annexes.
Article 10-03. Transparency.
1. Each Party shall publish promptly and, except in emergency situations, no later than the date of their entry into force, all relevant laws, regulations and administrative guidelines and other decisions, rulings or measures of general application that refer to or affect the operation of this Chapter, and have been put into effect by governmental institutions of the Party or by a non-governmental regulatory body of the Party. International agreements relating to or affecting trade in services and those that are developments of this Agreement shall also be published.
2. Where it is not feasible or practical to publish the information referred to in paragraph 1, it shall be made available to the public in another manner.
3. Each Party shall promptly inform the other Parties, at least annually, of the establishment of new laws, regulations or administrative guidelines significantly affecting trade in services covered by its specific commitments under this Chapter, or of changes thereto.
4. Each Party shall respond promptly to all specific requests for information from other Parties on all measures referred to in paragraph 1. Each Party shall also establish one or more centers responsible for providing specific information to other Parties upon request on all such matters, as well as on those subject to the reporting obligation under paragraph 3.
Article 10-04. National Treatment.
1. Each Party shall accord to services, as well as to service suppliers of another Party, treatment no less favorable than that accorded, in like circumstances, to its services or service suppliers.
2. Treatment accorded by a Party under paragraph 1 means, with respect to a state or department, treatment no less favorable than the most favorable treatment accorded, in like circumstances, by that state or department to service suppliers of the Party of which it is a member.
Article 10-05. Most Favored Nation Treatment.
1. Each Party shall accord to services and service suppliers of another Party treatment no less favorable than that accorded, in like circumstances, to services and service suppliers of any other Party or of any non-Party.
2. The provisions of this Chapter shall not be construed to prevent a Party from conferring or granting advantages to countries with which it has a land border for the purpose of facilitating trade, limited to contiguous border areas, in services that are produced and consumed locally.
Article 10-06. Local Presence Not Mandatory.
No Party shall require a service supplier of another Party to establish or maintain a representative office or other business or to reside in its territory as a condition for the supply of a service.
Article 10-07. Consolidation of Measures.
1. No Party shall increase the degree of non-conformity of its existing measures with respect to Articles 10-04 through 10-06. Any reform of these measures shall not diminish the degree of conformity of the measure as it was in force immediately prior to the reform.
2. Within eight months of the signing of the Treaty, the Parties shall sign a Protocol consisting of two lists containing the agreements of the negotiations carried out by the Parties during those eight months.
3. Schedule 1 shall contain the sectors and subsectors that each Party shall reserve from compliance with the obligations set forth in paragraph 1.
4. Schedule 2 shall contain the federal and central measures not in conformity with Articles 10-04 to 10-06 that each Party decides to maintain.
5. Within two years after the signature of the Treaty, the Parties shall sign a Protocol in which they shall register the state and departmental measures not in conformity with Articles 10-04 to 10-06.
6. The Parties shall not be obliged to register municipal measures.
Article 10-08. Non-discriminatory Quantitative Restrictions.
1. The Parties shall endeavor to negotiate periodically, at least every two years, the release or elimination of existing quantitative restrictions maintained at the federal or central, state or departmental level.
2. Within one year of the date of entry into force of this Agreement, the Parties shall conclude a Protocol containing the quantitative restrictions referred to in paragraph 1.
3. Each Party shall notify the other Parties of any quantitative restrictions, other than those at the municipal government level, that it adopts after the date of entry into force of this Agreement, and shall register the restriction in the Protocol referred to in paragraph 2.
4. The agreements resulting from the negotiation for the release referred to in paragraph 1 shall be recorded in Protocols.
Article 10-09. Future Release.
Through future negotiations to be convened by the Commission, the Parties shall deepen the liberalization achieved in the different services sectors, with a view to achieving the elimination of the remaining restrictions inscribed in accordance with Article 10-07, paragraphs 3 to 5, and an overall balance in commitments.
Article 10-10. Release of Non-discriminatory Measures.
The Parties may negotiate the release of quantitative restrictions, licensing requirements and other non- discriminatory measures. The commitments made shall be recorded in a Protocol signed by the Parties.
Article 10-11. Reciprocity and Global Balance.
The Parties, in the negotiations referred to in Articles 10-07, 10-08 and 10-10, shall seek to reach agreements on the basis of reciprocity, aimed at achieving an overall balance in the concessions granted.
Article 10-12. Procedures.
No later than one month after the date of entry into force of this Agreement, the Parties shall jointly establish procedures for carrying out the negotiations leading to the elaboration of the Protocols referred to in Articles 10- 07, 10-08 and 10-10, as well as for the communication of the measures referred to in Articles 10-07, paragraph 6 and 10-08, paragraphs 2 and 3.
Article 10-13. Technical Cooperation.
1. The Parties shall, within twenty-four months of the entry into force of this Agreement, establish a system to provide service suppliers with information concerning their markets with respect to:
a) the commercial and technical aspects of the supply of services; b) the possibility of obtaining technology in the area of services; and c) those aspects that the Commission considers pertinent on this subject.
The Commission shall recommend to the Parties the adoption of the measures necessary for due compliance with the provisions of paragraph 1.
Article 10-14. Granting of Licenses and Certificates.
1. In order to ensure that any measures that a Party adopts or maintains with respect to licensing or certification requirements and procedures for nationals of another Party do not constitute an unnecessary barrier to trade, each Party shall endeavor to ensure that such measures:
a) are based on objective and transparent criteria, such as capacity and aptitude to provide a service;
b) are not more burdensome than necessary to ensure the quality of a service; and c) do not constitute a disguised restriction on the cross-border supply of a service.
2. When a Party revalidates or recognizes, unilaterally or by agreement with another country, licenses or certificates obtained in the territory of another Party or of any non-Party:
a) nothing in Article 10-05 shall be construed to require that Party to revalidate or recognize education or studies, licenses or certificates or degrees obtained in the territory of another Party; and
b) the Party shall provide to any other Party adequate opportunity to demonstrate the reasons why education or studies, licenses, certificates or diplomas obtained in the territory of that Party should likewise be revalidated or recognized, or to negotiate or conclude an agreement having equivalent effect.
3. Each Party shall, within two years of the date of entry into force of this Agreement, eliminate any nationality or permanent residence requirements it maintains for the granting of licenses, certificates or qualifications to professional service suppliers of another Party. Where a Party fails to comply with this obligation with respect to a particular sector, any other Party shall, in the same sector and for the same period of time as the Party in default, have as its sole remedy the right to:
a) maintain a requirement equivalent to that included in the list referred to in article 10-07, paragraph 5.
b) reestablish:
(i) any such requirements at the central or federal level that it has eliminated pursuant to this article; or
(ii) any such requirements at the state or departmental level that had been in effect on the date of entry into force of this Agreement, by notice to the Party in default.
4. The annex to article 10-02 establishes procedures for the recognition of studies or education and experience as well as other rules and requirements governing professional service providers.
Article 10-15. Denial of Benefits.
A Party may, after notice and consultations, deny the benefits under this Chapter to a service supplier of another Party, when it determines that the service is being supplied by an enterprise that does not carry out substantial business activities in the territory of either Party and that, in addition, is owned or controlled by persons of a non- Party.
Chapter XI. Telecommunications
Article 11-01. Definitions
For the purposes of this chapter, the following definitions shall apply:
intra-corporate communications: telecommunications by means of which a company communicates within itself or with its subsidiaries, branches and, according to the domestic laws and regulations of each Party, with its affiliates, or these communicate with each other. For such purposes, the terms subsidiaries, branches and, as the case may be, affiliates shall be interpreted in accordance with the definition of the Party concerned. Intra- corporate communications do not include commercial or non-commercial services provided to companies that are not related subsidiaries, branches or affiliates, or that are offered to customers or potential customers and in general to separate legal or juridical persons.
public telecommunications transport network: the physical infrastructure that enables the provision of public telecommunications services.
value-added services: telecommunication services that employ computerized processing systems that act on the format, content, code, protocol or similar aspects of the user's transmitted information, creating a new service different from the basic service and, to this extent, providing the customer with additional, different or restructured information; or involving the user's interaction with stored information.
public telecommunications transport service: any telecommunications transport service that a Party expressly or in fact provides that is offered to the general public. Such services may include telegraph, telephone, telex, bearer service and data transmission, which typically involve the real-time transmission of customer- supplied information between two or more points without any end-to-end change in the form or content of that information.
telecommunications: any transmission, emission or reception of signs, signals, writings, images, sounds or information of any nature by wire, radioelectricity, optical means or other electromagnetic systems.
Article 11-02. General Principles.
1. The Parties acknowledge:
a) the right of each of them to regulate the supply of services in its territory, and to establish new regulations in this respect, in order to achieve the objectives of its national policy;
b) the specific characteristics of the telecommunications services sector and, in particular, its dual function as an independent sector of economic activity and a fundamental means of supporting other economic activities.
Article 11-03. Scope of Application.
1. This chapter applies to the measures of each Party:
a) for the provision of value-added telecommunication services, under the terms established in Article 11-05;
b) affecting access to public telecommunications transport networks and services and the use thereof by value added service providers;
c) that it adopts or maintains relating to the standardization of connection of terminal or other equipment or systems to public telecommunications networks.
2. This Chapter does not apply to any measure that a Party adopts or maintains relating to the broadcasting or cablecasting of radio and television programming, or to the supply of basic telecommunications services.
3. Nothing in this chapter shall be construed to mean:
(a) to require a Party to authorize a person of another Party to establish, construct, acquire, lease, operate or supply telecommunications transport networks or services;
(b) to require a Party to establish, construct, acquire, lease, operate or supply telecommunications transport networks or services that are not offered to the general public, or to require any person to do so;
(c) prevent a Party from prohibiting persons operating private networks from using such a network to supply public telecommunications networks or services to third persons;
(d) oblige a Party to require any person that broadcasts or distributes radio or television programs by cable to provide its broadcasting or cable distribution infrastructure as a public telecommunications network.
4. In the event of any inconsistency between the provisions of this Chapter and any other provision of this Agreement, the provisions of this Chapter shall prevail to the extent of the inconsistency.
Article 11-04. Access to and Use of Public Telecommunications Transport Networks and Services.
1. Each Party shall ensure that any service supplier of another Party is granted, on reasonable and non- discriminatory terms and conditions, in accordance with the rules established in the Party concerned, access to and use of public telecommunications transport networks and services for the supply of value- added services. This obligation shall be fulfilled, inter alia, through the application of paragraphs 2 to 9.
2. Each Party shall endeavor to ensure that pricing for access to and use of public telecommunications transport networks and services is cost-based;
3. Each Party shall ensure that service providers of other Parties have access to and use of any public telecommunications transport network or service offered within or across its borders, including private leased circuits. To this end, each Party shall ensure, without prejudice to paragraphs 7 and 8, that such suppliers are permitted:
a) purchase or lease and connect the terminal equipment or other equipment interfacing with the network and necessary to provide the provider's services;
b) use the operating protocols chosen by the service provider for the provision of any service that is not necessary to ensure the availability of telecommunication transport networks and services to the general public.
4. Nothing in paragraphs 2 and 3 shall be construed to prevent cross-subsidization between public telecommunications transport services.
5. Each Party shall ensure that persons of another Party may have access to and use of public telecommunications networks or services for the transmission of information in its territory or across its borders, including for intra-corporate communications and for access to information contained in databases or stored in any other machine-readable form in the territory of any Party provided that they are for private and exclusive use, without the provision of services to third parties and by making the international connection through entities authorized to provide international basic services.
6. Notwithstanding paragraph 5, the Parties may take such measures as are necessary to ensure the security and confidentiality of messages, provided that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade in services.
7. Taking into account that access to and use of public telecommunications transport networks and services does not involve authorization to supply these services and that these services require authorization in all cases, each Party shall ensure that no conditions are imposed on users for access to and use of public telecommunications transport networks or services other than those necessary for:
a) to safeguard the public service responsibilities of public telecommunications service providers or telecommunications networks, in particular their ability to make their networks or services available to the general public;
b) to protect the technical integrity of public telecommunication networks or services; and
c) ensure that service suppliers of the other Parties only supply value-added services when they are permitted to do so in accordance with the commitments set out in this Chapter.
8. Inthe event that they meet the criteria set forth in paragraph 7, the conditions for access to their networks and services may include the following:
a) restrictions imposed on the resale or shared use of such services;
b) the requirement to use specified technical interfaces, including interface protocols, for interconnection with such networks and services;
c) requirements, when necessary, for the interoperability of such services and to promote the achievement of the objectives set forth in Article 11-08, paragraph 2;
d) the approval of terminal or other equipment interfacing with the network and technical requirements relating to the connection of such equipment to such networks;
e) restrictions imposed on the interconnection of private, leased or proprietary circuits with such networks or services, or with circuits leased by another service provider; or
f) communication, registration or licensing procedures.
9. Notwithstanding paragraphs 1 through 8, a Party may impose conditions on access to and use of public telecommunications transport networks and services that are reasonable, non-discriminatory and necessary to strengthen its domestic telecommunications infrastructure and its capacity to supply telecommunications services and to increase its participation in international trade in such services.
Article 11-05. Conditions for the Provision of Value-added Services.
1. Considering the strategic role of value-added services to increase the competitiveness of all economic activities in the region, the Parties shall establish the necessary conditions for their provision, taking into account the procedures and information required for this purpose.
2. Each Party shall ensure that:
a) any procedures it adopts or maintains for granting licenses, permits, registrations or communications relating to the supply of these services are transparent and non-discriminatory and that applications are processed expeditiously; and
b) the information required under such procedures is limited to that necessary to demonstrate that the applicant has the financial and technical capability to commence the provision of the service and that the applicant's services and terminal or other equipment comply with the technical standards or regulations applicable in the Party.
3. No Party shall require a supplier of these services:
a) to provide them to the general public, when they have been contracted by specific users and under defined technical conditions, or or oriented to them;
b) justify their rates in accordance with their costs; c) interconnect its networks with any particular customer or network; or
d) satisfy any particular technical standard or regulation, except for connection to a public telecommunications network, in which case the relevant recommendations of the International Telecommunication Union shall be taken into account.
4. Each Party may require the registration of a fee to:
a) aservice provider, for the purpose of correcting a practice of that service provider that the Party has found in a particular case to be anti-competitive, in accordance with its national law; or
b) a monopoly, to which the provisions of article 11-07 apply.
Article 11-08. Measures Relating to Standardization.
1. Each Party shall ensure that measures relating to standardization that relate to the connection of terminal or other equipment or system to public telecommunications networks, including those measures that relate to the use of test and measurement equipment for the conformity assessment procedure, include at least those necessary to:
a) avoid technical damage to public telecommunication networks;