Submitted by the OAS Trade Unit to the FTAA Negotiating Group on Competition Policies (NGCP).

Summary

This inventory gathers the fundamental provisions of free competition in the trade and integration agreements for the Western Hemisphere, in accordance with what was agreed upon by the member countries of the Group on Competition Policy in the Free Trade Area of the Americas.¹

The North American Free Trade Agreement (NAFTA), the Canada-Chile Free Trade Agreement and the Treaty on Free Trade of the Group of Three between the Republic of Colombia, the United Mexican States and the Republic of Venezuela (G-3), indicate the general principles governing the subjection of the enterprises of the contracting parties to the principles of free competition, particularly the practices of State enterprises. These agreements also provide for the creation of some Committees to review the development of competition policies within the framework of the treaties. In the G-3, the member countries, through their competition agencies, have made progress in their work to establish harmonized mechanisms and extra-territorial cooperation in the application of their respective national laws. In addition, the Agreement between the United States of America and the Government of Canada Regarding the Application of Their Competition and Deceptive Marketing Practices Laws establishes a framework to promote cooperation and coordination between the competent authorities to avoid disputes that may arise from the application of the laws and diminish the effect that those differences may have in each country. Similar provisions are also found in several agreements: i.e. the Agreement between the European Communities and the Government of Canada regarding the Application of their Competition Laws, the Cooperation Agreement on Competition Law Enforcement between the Governments of Canada and Mexico, and Memorandum of Understanding between the Commissioner of Competition (Canada) and the Fiscal Nacional Economico (Chile) regarding the Application of their Competition Laws.

The Mercosur Protocol and Decision 285 of the Andean Community establish common regime of rules for each of the member countries, prohibiting those trade practices that limit, restrict, affect or distort competition in the sub-regional market, including, specifically, the horizontal practices derived from collusive agreements between competing enterprises, practices that constitute the abuse of a dominant position, as well as economic concentrations arising from the merger, acquisition or the creation of enterprises as a whole. The Andean Community, in contrast to Mercosur, creates institutions and supra-national rules that regulate and apply to competition.

Protocol No. 8 of the CARICOM, which refers to the Competition Policies, Consumer Protection, Dumping and Subsidies, creates the Competition Commission that will establish, in the most appropriate way, the rules that will help control and prevent anti-competitive practices. The creation of supra-national competition institutions is one of its most unique characteristics.

The Treaty on Free Trade between the Republic of Chile and the Republic of Mexico also creates a Trade and Competition Commission entrusted with reporting and making recommendations on the relationship between the Laws and policies covering competition and trade.

The Treaty on Free Trade and Preferential Exchange between Panama and each of the member countries of the Central American Common Market refers to competition problems in Chapter IV, with which the necessary measures will be adopted to correct the possible weaknesses and distortions that could affect production and trade.

The Treaty on Free Trade between the Central American Common Market and the Dominican Republic with respect to its Competition Policy will create a Free Competition Committee that will be responsible to control and avoid anti-competitive business practices and will create mechanisms to facilitate and promote the development of that policy.

The Economic Complementation Agreement between the Republic of Bolivia and the Republic of Chile, in the chapter exclusively devoted to Unfair Trade Policies and Conditions of Competition, undertakes to follow the criteria and procedures stipulated in the framework of the General Agreement on Tariffs and Trade (GATT).

The Treaty on Free Trade between the Governments of Central America, which make up the Central American Common Market, and the Republic of Chile establishes the mechanisms to facilitate and promote the development of the Competition Policy and guarantees the application of its rules. Moreover, it shall endeavor to ensure that the benefits gained through this treaty shall not be undermined by anti-competitive business practices.

The Agreement between the European Community and the Government of the United States of America referring to the Principles of Positive Courtesy in the Application of Competition Rules stresses the importance of guaranteeing that trade flows and investment between the parties, as well as competition and the well-being of the consumers in their respective territories, are not hindered by anti-competitive activities.

In conclusion, the various agreements signed between the United States of America with Brazil, Mexico, Germany, Israel, Japan and Australia, as well as the Free Trade Agreement between the European Union and Mexico, express the same intent to promote mutual cooperation, including not only cooperation in the application of the laws to protect competition but also technical cooperation between the authorities in the field of competition, and to eliminate monopolistic activities.

NORTH AMERICAN FREE TRADE AGREEMENT (NAFTA)¹
CHAPTER FIFTEEN: COMPETITION POLICY, MONOPOLIES AND STATE ENTERPRISES

Article 1501: Competition Law

1. Each Party shall adopt or maintain measures to proscribe anticompetitive business conduct and take appropriate action with respect thereto, recognizing that such measures will enhance the fulfillment of the objectives of this Agreement. To this end the Parties shall consult from time to time about the effectiveness of measures undertaken by each Party.

2. Each Party recognizes the importance of cooperation and coordination among their authorities to further effective competition law enforcement in the free trade area. The Parties shall cooperate on issues of competition law enforcement policy, including mutual legal assistance, notification, consultation and exchange of information relating to the enforcement of competition laws and policies in the free trade area.

3. No Party may have recourse to dispute settlement under this Agreement for any matter arising under this Article.

Article 1502: Monopolies and State Enterprises

1. Nothing in this Agreement shall be construed to prevent a Party from designating a monopoly.
 
2. Where a Party intends to designate a monopoly and the designation may affect the interests of persons of another Party, the Party shall:

1. wherever possible, provide prior written notification to the other Party of the designation; and
2. endeavor to introduce at the time of the designation such conditions on the operation of the monopoly as will minimize or eliminate any nullification or impairment of benefits in the sense of Annex 2004
   (Nullification and Impairment).

3. Each Party shall ensure, through regulatory control, administrative supervision or the application of other measures, that any privately owned monopoly that it designates and any government monopoly that it maintains or designates:

1. acts in a manner that is not inconsistent with the Party's obligations under this Agreement wherever such a monopoly exercises any regulatory, administrative or other governmental authority that the Party has delegated to it in connection with the monopoly good or service, such as the power to grant import or export licenses, approve commercial transactions or impose quotas, fees or other charges;
2. except to comply with any terms of its designation that are not inconsistent with subparagraph (c) or (d), acts solely in accordance with commercial considerations in its purchase or sale of the monopoly good or service in the relevant market, including with regard to price, quality, availability, marketability, transportation and other terms and conditions of purchase or sale;
3. provides non-discriminatory treatment to investments of investors, to goods and to service providers of another Party in its purchase or sale of the monopoly good or service in the relevant market; and
4. does not use its monopoly position to engage, either directly or indirectly, including through its dealings with its parent, its subsidiary or other enterprise with common ownership, in anticompetitive practices in a non-monopolized market in its territory that adversely affect an investment of an investor of another Party, including through the discriminatory provision of the monopoly good or service, cross subsidization or predatory conduct.

4. Paragraph 3 does not apply to procurement by governmental agencies of goods or services for governmental purposes and not with a view to commercial resale or with a view to use in the production of goods or the provision of services for commercial sale.

5. For purposes of this Article "maintain" means designate prior to the date of entry into force of this Agreement and existing on January 1, 1994.

Article 1503: State Enterprises

1. Nothing in this Agreement shall be construed to prevent a Party from maintaining or establishing a state enterprise.

2 .Each Party shall ensure, through regulatory control, administrative supervision or the application of other measures, that any state enterprise that it maintains or establishes acts in a manner that is not inconsistent with the Party's obligations under Chapters Eleven (Investment) and Fourteen (Financial Services) wherever such enterprise exercises any regulatory, administrative or other governmental authority that the Party has delegated to it, such as the power to expropriate, grant licenses, approve commercial transactions or impose quotas, fees or other charges.

3.  Each Party shall ensure that any state enterprise that it maintains or establishes accords non-discriminatory treatment in the sale of its goods or services to investments in the Party's territory of investors of another Party.

Article 1504: Working Group on Trade and Competition

The Commission shall establish a Working Group on Trade and Competition, comprising representatives of each Party, to report, and to make recommendations on further work as appropriate, to the Commission within five years of the date of entry into force of this Agreement on relevant issues concerning the relationship between competition laws and policies and trade in the free trade area.

Article 1505: Definitions

For purposes of this Chapter:
designate means to establish, designate or authorize, or to expand the scope of a monopoly to cover an additional good or service, after the date of entry into force of this Agreement;
discriminatory provision includes treating:

a. a parent, a subsidiary or other enterprise with common ownership more favorably than an unaffiliated enterprise, or
b. one class of enterprises more favorably than another, in like circumstances;

government monopoly means a monopoly that is owned, or controlled through ownership interests, by the federal government of a Party or by another such monopoly;
in accordance with commercial considerations means consistent with normal business practices of privately held enterprises in the relevant business or industry;
market means the geographic and commercial market for a good or service;
monopoly means an entity, including a consortium or government agency, that in any relevant market in the territory of a Party is designated as the sole provider or purchaser of a good or service, but does not include an entity that has been granted an exclusive intellectual property right solely by reason of such grant;
non-discriminatory treatment means the better of national treatment and most favored nation treatment, as set out in the relevant provisions of this Agreement; and
state enterprise means, except as set out in Annex 1505, an enterprise owned, or controlled through ownership interests, by a Party.

Annex 1505: Country-Specific Definitions of State Enterprises

For purposes of Article 1503(3), "state enterprise";

1. with respect to Canada, means a Crown corporation within the meaning of the Financial Administration Act (Canada), a Crown corporation within the meaning of any comparable provincial law or equivalent entity that is incorporated under other applicable provincial law; and
2. with respect to Mexico, does not include, the Compañía Nacional de Subsistencias Populares (National Company for Basic Commodities) and its existing affiliates, or any successor enterprise or its affiliates, for purposes of sales of maize, beans and powdered milk.

TREATY ESTABLISHING THE CARIBBEAN COMMUNITY AND
COMMON MARKET - CARICOM
PROTOCOL AMENDING THE TREATY ESTABLISHING
THE CARIBBEAN COMMUNITY

(Protocol VIII: Competition Policy, Consumer Protection, Dumping and Subsidies)

PREAMBLE

The States parties to the Treaty Establishing the Caribbean Community (hereinafter referred to as "the Member States"):

Noting that competition policy has become more important with the deepening of the integration arrangements and the liberalization of the markets of the Region;

Aware that the benefits expected from the establishment of the CARICOM Single Market and Economy (CSME) may be frustrated by anti-competitive business conduct whose object or effect is to prevent, restrict, or distort competition.

Determined to promote and maintain competition through the establishment and enforcement of applicable laws and rules.

Determined further to promote consumer interest and welfare;

Conscious that the provision of subsidies by Member States and the practice of dumping could have an adverse impact on the promotion and development of competition in the CSME;

Convinced that the application and convergence of national competition policies and the cooperation of competition authorities in the Community would promote the objectives of the CSME,

Have Agreed as follows:

PART I PRELIMINARY

Article I.
Use of Terms

1. In this Protocol, unless the context otherwise requires:

"anti-competitive business conduct" has the meaning assigned to it in Article 30(i);
"business" means any activity carried on for gain or reward or in the course of which goods or services are produced, manufactured or supplied;
"Commission" means the Competition Commission established by Article 30(c);
"Community" includes the CARICOM Single Market and Economy to be established by the Protocols amending or replacing the Caribbean Common Market Annex to the Treaty;
"Community Council of Ministers" (hereinafter referred to as "the Community Council") means the Organ of the Community so named in Article 8 (1) of the Treaty;
"competent authority" means the authority legally authorised to perform a function;
"Conference" means the Conference of Heads of Government of the Community;
"Council for Trade and Economic Development (COTED)" means the Organ of the Community so named in Article 6(2)(a) of the Treaty, and for the purposes of this Protocol shall be deemed to include the interim Committee established pursuant to Rule 34 of the Rules of Procedure of the COTED;
"Court" means the Court established by Article III of the Agreement Establishing the Caribbean Court of Justice;
"enterprise" means any person or type of organisation involved in the production of or the trade in goods, or the provision of services (other than a non-profit organisation);
"goods" means all kinds of property other than real property, money, securities or chooses in action;
"Regional Judicial and Legal Services Commission" means the Commission established by Article V of the Agreement Establishing the Caribbean Court of Justice;
"rules of competition" includes the rules set out in Articles 30(i), 30(h) and 30(k) of this Protocol and any other rules made pursuant to Article 30(b) 1(a)(i);
"Secretary-General" means the Secretary-General of the Community;
"services" means services provided against remuneration other than wages in an approved sector and "the provision of services" means the supply of services:

(a) from the territory of one Member State into the territory of another Member State;
(b) in the territory of one Member State to a service consumer of another Member State;
(c) by a service supplier of one Member State through commercial presence in the territory of another Member State; and
(d) by a service supplier of one Member State through the presence of natural persons of a Member State in the territory of another Member State;

"subsidies" includes the subsidies set out in Schedule V of Protocol IV - Trade Policy and shall apply only in relation to goods;
"trade" includes any business, industry, profession or occupation relating to the supply or acquisition of goods or services;
"Treaty" means the Treaty Establishing the Caribbean Community signed at Chaguaramas on the 4th day of July 1973 and includes any amendments thereto which take effect either provisionally or definitively (hereinafter referred to as "the Treaty").

2. Where in this Protocol there is a requirement for notification to be given, such notification shall be in writing.

Article II
Amendment

Replace Articles 19 and 30 of the Caribbean Common Market Annex to the Treaty with the following:

Article 30
Scope of Parts I, II and III

The rules of competition shall not apply to -

(a) combinations or activities of employees for their own reasonable protection as employees;
(b) arrangements for collective bargaining on behalf of employers or employees for the purpose of fixing terms and conditions of employment;
(c) business conduct within the meaning of Article 30(i) duly notified to the COTED in accordance with Article 30(b);
(d) negative clearance rulings within the meaning of Article 30(l) or exemptions within the meaning of Articles 30(m) and 30(o);
(e) activities of professional associations designed to develop or enforce professional standards of competence reasonably necessary for the protection of the public and approved by the Commission.

Article 30(a)
Objectives of Community Competition Policy

1. The goal of the Community Competition Policy shall be to ensure that the benefits expected from the establishment of the      CARICOM Single Market and Economy (CSME) are not frustrated by anti-competitive business conduct.
2. In fulfilment of the goal set out in paragraph 1 of this Article, the Community shall pursue the following objectives:

(a) promote and maintain competition and enhance economic efficiency in production, trade and commerce;
(b) subject to the Treaty, prohibit anti-competitive business conduct which prevents, restricts or distorts competition or
which constitutes the abuse of a dominant position in the market;
(c) promote consumer welfare and protect consumer interest;

Article 30(b)
Implementation of Community Competition Policy

1. In order to achieve the objectives of the Community Competition Policy,

(a) the Community shall:
(i) subject to the Treaty, establish appropriate norms and institutional arrangements to prohibit and penalise anti-competitive business conduct;
(ii) establish and maintain information systems to enable enterprises and consumers to be kept informed about the operation of markets within the CSME;
(b) Member States shall:
(i) take the necessary legislative measures to ensure consistency and compliance with the rules of competition and provide penalties for anti-competitive business conduct;
(ii) provide for the dissemination of relevant information to facilitate consumer choice;
(iii) establish and maintain institutional arrangements and administrative procedures to enforce competition laws;
(iv) take effective measures to ensure access by nationals of other Member States to competent enforcement authorities including the courts on an equitable, transparent and non-discriminatory basis.

2. A Member State shall establish and maintain a national competition authority for the purpose of facilitating the implementation of the rules of competition.

3. A Member State shall require its national competition authority to:

(a) co-operate with the Commission in achieving compliance with the rules of competition;
(b) investigate any allegations of anti-competitive business conduct being allegations referred to the authority by the Commission or another Member State .
(c) cooperate with other national competition authorities in the detection and prevention of anti-competitive business conduct, and the exchange of information relating to such conduct.

4. Nothing in this Article shall be construed as requiring a Member State to disclose confidential information, the disclosure of which would be prejudicial to the public interest or to the legitimate commercial interests of enterprises, public or private. Confidential or proprietary information disclosed in the course of an investigation shall be treated on the same basis as that on which it was provided.

5.   Within 24 months of the entry into force of this Protocol, Member States shall notify the COTED of existing legislation, agreements and administrative practices inconsistent with the provisions of this Protocol. Within 36 months of entry into force of this Protocol, the COTED shall establish a programme providing for the termination of such legislation, agreements and administrative practices.

PART II
COMPETITION COMMISSION

Article 30 (c)
Establishment of the Competition Commission

For the purposes of implementation of the Community Competition Policy, there is hereby established a Competition Commission (hereinafter called "the Commission") having the composition, functions and powers hereinafter set forth.

Article 30(d)
Composition of the Commission

1. The Commission shall comprise seven members appointed by the Regional Judicial and Legal Services Commission to serve on the Commission. The Regional Judicial and Legal Services Commission shall appoint a Chairman from among the members so appointed. Notwithstanding the foregoing, the Chairman and Members of the Commission shall be appointed by Conference on the recommendation of the COTED as long as the Parties to the Agreement Establishing the Caribbean Court of Justice are less than seven.

2. The Commission shall comprise persons, collectively having expertise or experience in commerce, finance, economics, law, competition policy and practice, international trade and such other areas of expertise or experience as may be necessary.

 3.  A Commissioner shall be appointed for a term of five years and such appointment may be renewed for a further period of not more than five years as determined by the Regional Judicial and Legal Services Commission.

4.  A Commissioner may be removed from office only for inability to perform the functions of his office or for misbehaviour.

5.  A Commissioner shall be removed only on the vote of the Judicial and Legal Services Commission that represents not less than three-quarters of all the Members of the Commission.

 6. A Commissioner may at any time resign the office of Commissioner by writing under his hand addressed to the Chairman of the Judicial and Legal Services Commission.

7.  A Commissioner shall not enter upon the duties of the office unless he has taken and subscribed before the Chairman of the Judicial and Legal Services Commission, the Oath of Office set out in Annex V to this Protocol.

Article 30(e)
Functions of the Commission

1. The Commission shall:

(a) apply the rules of competition in respect of anti-competitive cross-border business conduct;
(b) promote competition in the Community and co-ordinate the implementation of the Community Competition Policy; and
(c) perform any other function conferred on it by any competent body of the Community.

2. In discharging the functions set out in paragraph 1, the Commission shall:

(a) monitor anti-competitive practices of enterprises operating in the CSME, and investigate and arbitrate cross-border disputes;
(b) keep the Community Competition Policy under review and advise and make recommendations to the COTED to enhance its effectiveness;
(c) promote the establishment of institutions and the development and implementation of harmonised competition laws and practices by Member States to achieve uniformity in the administration of applicable rules;
(d) review the progress made by Member States in the implementation of the legal and institutional framework for enforcement;
(e) co-operate with competent authorities in Member States;
(f) provide support to Member States in promoting and protecting consumer welfare;
(g) facilitate the exchange of relevant information and expertise; and
(h) develop and disseminate information about competition policy, and consumer protection policy.

3. The Commission may, by directions in writing and subject to such conditions as it thinks fit, delegate any of its functions to one or more of its members.

Article 30(f)
Powers of the Commission

1. Subject to Articles 30(g) and 30(h), the Commission may, in respect of cross-border transactions or transactions with cross-border effects, monitor, investigate, detect, make determinations or take action to inhibit and penalise enterprises whose business conduct prejudices trade or prevents, restricts or distorts competition within the CSME.

2.   The Commission may, in accordance with applicable national laws, in the conduct of its investigations:

(a) secure the attendance of any person before it to give evidence;
(b) require the discovery or production of any document or part thereof; and
(c) take such other action as may be necessary in furtherance of the investigation.

3. The Commission may, on the basis of its investigations, make determinations regarding the compatibility of business conduct with the rules of competition and other related provisions of the Treaty.

4.  The Commission shall, to the extent required to remedy or penalise anti-competitive business conduct referred to in Article 30(i):

(a) order the termination or nullification as the case may require, of agreements, conduct, activities or decisions prohibited by Article 30(i);
(b) direct the enterprise to cease and desist from anti-competitive business conduct and to take such steps as are necessary to overcome the effects of abuse of its dominant position in the market, or any other business conduct inconsistent with the principles of fair competition set out in this Protocol;
(c) order payment of compensation to persons affected; and
(d) impose fines for breaches of the rules of competition.

5. The Commission may enter into such arrangements for the provision of services as may be necessary for the efficient performance of its functions.

6.  Member States shall enact legislation to ensure that determinations of the Commission are enforceable in their jurisdictions.

 7. The Commission may establish its own rules of procedure.

Article 30(g)
Determination of Anti-Competitive Business Conduct:

Procedure of Commission on Request

1. A Member State may request an investigation referred to in paragraph 1 of Article 30(f) where it has reason to believe that business conduct by an enterprise located in another Member State prejudices trade and prevents, restricts or distorts competition in the territory of the requesting Member State.

2.   Where the COTED has reason to believe that business conduct by an enterprise in the CSME prejudices trade and prevents, restricts or distorts competition within the CSME and has or is likely to have cross-border effects, the COTED may request an investigation referred to in paragraph 1 of Article 30(f).

3.  Requests under paragraphs 1 and 2 shall be in writing and shall disclose sufficient information for the Commission to make a preliminary assessment whether it should proceed with the investigation.

4. pon receipt of a request mentioned in paragraph 3, the Commission shall consult with the interested parties and shall determine on the basis of such consultations whether:

(a) the investigation is within the jurisdiction of the Commission; and
(b) the investigation is justified in all the circumstances of the case.

5. The consultations shall be concluded within 30 days of the date of receipt of the request for investigation, unless the parties agree to continue the consultations for a longer period.

6. Where the Commission decides to conduct the investigation, the Commission shall:

(a) notify the interested parties and the COTED;
(b) complete the investigation within 120 days from the date of receipt of the request for the investigation; and
(c) where the circumstances so warrant, extend the time period for completion of the investigation and notify the interested Parties.

7. Where the Commission decides to conduct an enquiry following an investigation, the Commission shall afford any party complained of the opportunity to defend its interest.

8.  At the conclusion of an enquiry, the Commission shall notify the interested parties of its determination.

9.  Where the Commission determines that a party has engaged in anti-competitive business conduct, it shall also require the party to take the action necessary to remove the effects of the anti-competitive business conduct.

10. Where a specific course of action is required under paragraph 9, the enterprise concerned shall take the appropriate course of action within 30 days of the date of notification. If the concerned enterprise cannot comply, it shall notify the Commission and request an extension.

11.  If the enterprise cannot comply within the time period specified and fails to inform the Commission, the Commission may apply to the Court for an order

12.  A party which is aggrieved by a determination of the Commission under paragraph 4 of Article 30(f) in any matter may apply to the Court for a review of that determination.

Article 30(h)
Determination of Anti-Competitive Business Conduct;

Procedure of Commission Proprio Motu

1. Where the Commission has reason to believe that business conduct by an enterprise in the CSME prejudices trade and prevents, restricts, or distorts competition within the CSME and has cross-border effects, the Commission shall request the competent national authority to undertake a preliminary examination of the business conduct of the enterprise.

2.  Where a request is made under paragraph 1, the national authority shall examine the matter and report its findings to the Commission within such time as may be determined by the Commission.

3.  Where the Commission is not satisfied with the outcome of its request, the Commission may initiate its own preliminary examination into the business conduct of the enterprise referred to in paragraph 1.

4. Where the findings of the preliminary examination under paragraphs 2 and 3 require investigation, the Commission and the Member State concerned shall hold consultations to determine and agree on who should have jurisdiction to investigate.

5. If there is a difference of opinion between the Commission and the Member State regarding the nature and effects of the business conduct or the jurisdiction of the investigating authority, the Commission shall:

(a) cease any further examination of the matter; and
(b) refer the matter to the COTED for its decision.

6.  Nothing in this Article shall prejudice the right of the Member State to initiate proceedings before the Court at any time.

7.  Where there is a finding that the Commission has jurisdiction to investigate the matter, the Commission shall follow the procedures set out in paragraphs 5, 6, 7 and 8 of Article 30(g).

PART III
RULES OF COMPETITION

Article 30(i)
Prohibition of Anti-Competitive Business Conduct

1. A Member State shall, within its jurisdiction, prohibit as being anti-competitive business conduct, the following:

(a) agreements between enterprises, decisions by associations of enterprises, and concerted practices by enterprises which have as their object or effect the prevention, restriction or distortion of competition within the Community;
(b) actions by which an enterprise abuses its dominant position within the Community; or
(c) any other like conduct by enterprises whose object or effect is to frustrate the benefits expected from the establishment of the CSME.

2. Anti-competitive business conduct within the meaning of paragraph 1 includes the following:

(a) the direct or indirect fixing of purchase or selling prices,
(b) the limitation or control of production, markets, investment or technical development;
(c) the artificial dividing up of markets or restriction of supply sources;
(d) the application of unequal conditions to parties undertaking equivalent engagements in commercial transactions thereby placing them at a competitive disadvantage;
(e) making the conclusion of a contract subject to the acceptance by the other party to the contract of additional obligations which, by their nature or according to commercial practice, have no connection with the subject matter of the contract;
(f) unauthorised denial of access to networks or essential infrastructure;
(g) predatory pricing;
(h) price discrimination;
(i) loyalty discounts or concessions;
(j) exclusionary vertical restrictions; and
(k) bid-rigging.

3. Subject to Article 30, a Member State shall ensure that all agreements and decisions within the meaning of paragraph 1 of this Article shall be null and void within its jurisdiction.

4. An enterprise shall not be treated as engaging in anti-competitive business conduct if it establishes that the activity complained of:

(a) contributes to:

(i) the improvement of production or distribution of goods and services; or
(ii) the promotion of technical or economic progress while allowing consumers a fair share of the resulting benefit;

(b) imposes on the enterprises affected only such restrictions as are indispensable to the attainment of the objectives mentioned in sub-paragraph (a); or
(c) does not afford the enterprise engaged in the activity the possibility of eliminating competition in respect of a substantial part of the market for goods or services concerned.

Article 30(j)
Determination of Dominant Position
For the purposes of this Protocol:

(a) an enterprise holds a dominant position in a market if by itself or together with an interconnected company, it occupies such a position of economic strength as will enable it to operate in the market without effective constraints from its competitors or potential competitors;

(b) any two companies shall be treated as interconnected companies if one of them is a subsidiary of the other or both of them are subsidiaries of the same parent company.

Article 30(k)
Abuse of a Dominant Position

1. Subject to paragraph 2 of this Article, an enterprise abuses its dominant position in a market if it prevents, restricts or distorts competition in the market and, in particular but without prejudice to the generality of the foregoing, it:

(a) restricts the entry of any enterprise into a market;

(b) prevents or deters any enterprise from engaging in competition in a market;

(c) eliminates or removes any enterprise from a market;

(d) directly or indirectly imposes unfair purchase or selling prices or other restrictive practices;

(e) limits the production of goods or services for a market to the prejudice of consumers;

(f) as a party to an agreement, makes the conclusion of such agreement subject to acceptance by another party of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of the agreement;

(g) engages in any business conduct that results in the exploitation of its customers or suppliers,
so as to frustrate the benefits expected from the establishment of the CSME.

2. In determining whether an enterprise has abused its dominant position, consideration shall be given to:

(a) the relevant market defined in terms of the product and the geographic context;

(b) the concentration level before and after the relevant activity of the enterprise measured in terms of annual sales volume, the value of assets and the value of the transaction;

(c) the level of competition among the participants in terms of number of competitors, production capacity and product demand;

(d) the barriers to entry of competitors; and

(e) the history of competition and rivalry between participants in the sector of activity.

3. An enterprise shall not be treated as abusing its dominant position if it is established that:

(a) its behaviour was directed exclusively to increasing efficiency in the production, provision or distribution of goods or services or to promoting technical or economic progress and that consumers were allowed a fair share of the resulting benefit;

(b) the enterprise reasonably enforces or seeks to enforce a right under or existing by virtue of a copyright, patent, registered trade mark or design; or

(c) the effect or likely effect of its behaviour on the market is the result of superior competitive performance of the enterprise concerned.

Article 30(l)
Negative Clearance Rulings

1. In any case where a Member State is uncertain whether business conduct is prohibited by paragraph 1 of Article 30(i), such a Member State may apply to the Commission for a ruling on the matter. If the Commission determines that such conduct is not prohibited by paragraph 1 of Article 30(i), it shall issue a negative clearance ruling to this effect.

2. A negative clearance ruling shall be conclusive of the matters stated therein in any judicial proceedings in the Community.

Article 30(m)
De Minimis Rule

The Commission may exempt from the provisions of this Part any business conduct referred to it if it considers that the impact of such conduct on competition and trade in the CSME is minimal.

Article 30(n)
Powers of the COTED Respecting Community
Competition Policy and Rules

Subject to the Treaty, the COTED shall develop and establish appropriate policies and rules of competition within the Community including special rules for particular sectors.

Article 30(o)
Exemptions

1. Where the COTED determines, pursuant to Article 30(n), that special rules shall apply to specific sectors of the Community, it may suspend or exclude the application of Article 30(i) to such sectors pending adoption of the relevant rules.

2. The COTED may, on its own initiative or pursuant to an application by a Member State in that behalf, exclude or suspend the application of Article 30(i) to any sector or any enterprise or group of enterprises in the public interest.

ANDEAN COMMUNITY²
DECISION 285: NORMS FOR THE PREVENTION OR CORRECTION OF DISTORTIONS IN
COMPETITION CAUSED BY PRACTICES THAT RESTRICT FREE COMPETITION

The Commission of the Cartagena Agreement,

HAVING SEEN: Chapter VIII of the Cartagena Agreement, Decisions 230, 258 and 281 and Proposal 226/Rev.1 of the Board. CONSIDERING:
That the Commission approved Decision 230, that contains the norms to prevent or correct practices that could distort competition;
That the Commission, as set out in Decision 258 and as proposed by the Board, will review the norms on commercial competition;
That the Commission, as set out in Decision 281, will establish, no later than 31 March 1991, as proposed by the Board, will review the norms on commercial competition established in Decision 230;
That to obtain the objectives of the integration process it is convenient to perfect the subregional norms on competition, in order to build efficient mechanisms that would allow prevention and correction of distortions arising from business behavior that restricts, impedes, or undermines competition.
That due to its origin and scope it is necessary to distinguish between the practices considered under this Decision and those practices related to dumping and subsidies, and export restrictions;
DECIDES:

I. Scope of Application

Article 1.- The purpose of the norms considered in this Decision is to prevent or correct distortions of competition arising from practices that restrict free competition.

Article 2.- Member Countries or companies that have legitimate interest may ask the Board for authorization or mandate to apply measures to prevent or correct imminent damages or damages to production or exports, resulting from practices in the subregion that restrict free competition, or practices of a company that carries on economic activity in a Member Country.
Practices in the subregion means practices of companies that engage in economic activity in one or more Member Countries. Intervention of a Member Country means a practice linking companies that carry out economic activity in one or more Member Countries and companies located outside the subregion.
This decision does not include practices undertaken by one or more companies located in a single Member Country that do not have effect in the subregion. These cases are subject to the respective domestic legislation.
For the purposes of this decision, imminent damage includes appreciable delay in starting production.

Article 3.- Practices which restrict free competition are those agreements, parallel actions, or joint practices among companies that produce or could produce the effect of restricting, impeding, or undermining competition.
The agreements mentioned in the preceding paragraph shall include horizontal or vertical ones entered into between parties linked to the companies.
For the purposes of this Decision, abusive exploitation of a dominant position in the market by one or more companies shall also be considered an anticompetitive practice.

A dominant position by one or more companies exists when they can act independently without regard for competitors, buyers, or providers, due to factors such as a significant participation by the companies in the respective markets, the characteristics of supply and demand of the products, the technological development of he products involved, the access of competitors to sources of funding and supplies, as well as distribution networks.

Article 4.- Agreements, parallel actions, or joint practices can consist of:

1. a. improper manipulation or direct or indirect fixing of prices or other market terms, in a discriminatory manner with regard to those prevalent in normal commercial transactions;
2. limitation or control of production, distribution, technical development, or investment. Also, limits or prohibitions on exports, imports, or competition;
3. allocation of the market or supply sources, particularly measures designed to disrupt the normal supply of raw materials;
4. the application in commercial relations of discriminatory conditions for similar services that place some competitors at a disadvantage with regard to others;
5. the making of contracts contingent upon supplementary conditions that by their nature or in accordance with usual business custom have no relation to the purpose of the contracts; and
6. other actions with similar effects.

Article 5.- Abuse of a dominant market position means:

1. a. improper manipulation or direct or indirect fixing of prices or other market terms, in a discriminatory manner with regard to those prevalent in normal commercial transactions;
2. limitation or control of production, distribution, technical development, or investment. Also, limits or prohibitions on exports, imports, or competition;
3. unjustified refusal to satisfy demands for the purchase of products, among others, the withholding of inputs from companies in competition for the market of the final product;
4. the application in commercial relations of discriminatory conditions for similar services that place some competitors at a disadvantage with regard to others;
5. the making of contracts contingent upon supplementary conditions that by their nature or in accordance with usual business
   custom have no relation to the purpose of the contracts; and f. other actions with similar effects.

II. Procedures

Article 6.- Requests can be presented by:

1. the Member Countries through their respective liaison organs; and
2.  the company or companies that have legitimate interest, to the extent permitted by domestic legislation.

The request shall include the following information:

• the nature of the restrictive practices and the length of their duration;
• the characteristics of the products or services involved in the practices;
• the characteristics of the products affected;
•  the companies involved;
• evidence that makes it possible to presume the existence of damage or imminent damage to production or exports from anticompetitive practices;
• the type of measures requested.
  After receiving the complaint, the Board shall send it to the national liaison organs in the country where the companies involved in the investigation carry out their economic activity.

Article 7.- The Board will not begin an investigation if the request is incomplete. In such a case, within ten working days after the presentation of the request, the Board should inform the complainant, giving details of the missing information.
If the request is considered to be complete, within ten days after the presentation of the request, the Board shall issue a explanatory Resolution. Likewise, the complainant company or companies will be notified of said Resolution.

Article 8.- In the course of the investigation, the Junta may request and collect evidence and information from the national agencies and, through them or directly, from the producers, exporters, importers, distributors or consumers who may have legitimate interest in the investigation. Likewise, they may submit information or present allegations to the Junta.
In the cases in which the Junta requests, collects or receives evidence and information directly, it shall communicate it to the respective national bodies.

Article 9.- In use of the Junta authority to request and collect evidence, it may give confidential treatment to such an information in regard to the aspects requested by the provider once justified such a treatment on the basis of likely unfavorable consequences.
Likewise, internal documents elaborated by the Junta or the member countries shall enjoy confidential treatment in regard to the parts of such a nature.
When pretending to provide confidential treatment to an evidence, the person soliciting it shall provide a brief of the information likely to be divulged or an explanation justifying the reason by which it is not possible to brief it. In the latter case, the Junta may not accept such a justification and disregard such an evidence.
By the same token, and notwithstanding the request being justified, the Junta may not take the information into consideration if who provided it does not also provide a non-confidential brief of it, if possible.
The interested parties in the investigation may request by writing the information provided or elaborated during the application of this Decision so long as they do not have confidential character.
The present article does not restraint the dissemination of general information and, particularly, of the motives on which are based the Resolutions referring the present Decision, so long as they are requested in the course of a judicial proceeding. This dissemination shall not reveal commercial secrets of the parties with legitimate interest in the investigation.

Article 10.- In the course of an investigation, the Junta may call ex-officio or at request of the interested parties meetings aimed at procuring a direct settlement whose commitments and findings shall be recorded in a minute.
No interested party shall be bound to attend a meeting and his absent shall not be in detriment of his cause.
The Junta shall issue a motivated resolution indicating the commitments reached and, if the investigation is suspended or proceeds at the interested party’s request.
The firms or authorities of the country where the practice occurs, shall provide the relevant information to verify the fulfilment of the commitments reached. When the commitments do not fulfil or the information is not provided, the Junta shall proceed the investigation.

Article 11.- For the investigation, the Board has two months from the date of publication the Resolution referred in Article 7 of this Decision.
In cases of exception, the period may be extended up to two months in which case the Junta shall notify it to the interested party.

Article 12.- In its finding, the Board shall consider the relevant evidence with regard to:

1.  the anticompetitive practices;
2.  the damage or imminent damage; and
3.  the relation of cause and effect between the practices and the damage or imminent damage.

Article 13.- The determination of the existence of damage or threat of damage and the relation of cause and effect involving the anticompetitive practices shall be based on the following elements, among others:

1. the volume of trade in the products affected by the practices, particularly in order to determine whether its has changed significantly in absolute terms and in relation to the production and consumption in the affected member country;
2. the prices of the products and services affected by the practices, particularly to determine if they differ substantially from the prices of similar products or services in the absence of the practices; and
3.  the effects on production or exports affected by the practices, according to the real or apparent trends of the pertinent economic factors, such as: production, domestic sales, exports, distribution, market share, utilization of installed capacity, employment, stocks, and benefits.

Article 14.- At the conclusion of its investigation, within 10 working days of the time provided in Article 11, the Board shall issue a finding with explanation, setting forth its conclusions on the basis of available information.  The resolution shall indicate the measures adopted, the deadline for their adoption, and their duration. When appropriate, it shall also indicate the conditions that determine the duration of the measures.

Article 15.- Once the Junta verifies, at national authorities or parties interested’s request, that the causes that originated the Resolution referred in the above Article modified or ceased, it shall leave it partially or totally without effect, by modifying or abolishing it. For its decision, the Junta shall have two months.  The Junta likewise may verify ex-officio the causes that originated the Resolution modified or ceased, by modifying or abolishing it.

III. Measures

Article 16.- The Board shall issue an injunction when it determines the existence of an anticompetitive practice that causes damage or imminent damage. It may also decide to apply measures tending to eliminate or alleviate the distortions that gave rise to the complaint. The Member Countries shall adopt the necessary measures to halt the practices.
The corrective measures may consist of authorization for the countries in which the affected companies carry on their economic activity to apply preferential tariffs with regard to subregional tariff commitments, in cases of imports of products affected by the anticompetitive practice.

Article 17.- When the damage or imminent damage is evident, the Board may, in the course of its investigation, make recommendations to cause the practice to cease.

IV. Final Provisions

Article 18.- This Decision supersedes Decision 230 in those provisions related to preventing or correcting distortions to competition as a result of restrictive practices of competition.
Signed at Lima, Peru, on March 21, 1991.

COMMON MARKET OF THE SOUTHERN CONE (MERCOSUR)
PROTOCOL OF THE DEFENSE OF COMPETITION³

The Republic of Argentina, The Federal Republic of Brazil, the Republic of Paraguay, the Eastern Republic of Uruguay, henceforth designated as the States Parties
CONSIDERING
that the free movement of goods and services between the States Parties renders essential that adequate conditions of competition be assured in order to contribute to the strengthening of the Custom Union;
that States Parties must assure, in the exercise of their economic rights within their territories, equal conditions of free competition;
that balanced and harmonious growth of intra-zonal trade relations, as well as increased competitiveness among the States Parties will depend in large part upon the consolidation of a competitive environment in the integrated framework of the MERCOSUR;
that it is urgent that directives be established in order to provide guidance to States Parties and the enterprises situated within them in the defense of competition in the MERCOSUR, as an instrument capable of assuring free market access and a balanced distribution of the benefits of the process of economic integration.
RESOLVE

CHAPTER I
THE PURPOSE AND THE SCOPE OF APPLICATION

Article 1. - The purpose of the present Protocol is the defense of competition in the framework of the MERCOSUR.

Article 2.- The rules of this Protocol apply to actions taken by natural and legal persons under public and private law, and other entities whose purpose is to influence or to bring influence to bear upon competition in the framework of the MERCOSUR and consequently to influence trade between the States Parties;

Single Paragraph - Among the legal entities referred to in the preceding paragraph are included those enterprises which exercise a State monopoly, insofar as the rules of this Protocol do not prevent the regular exercise of their legal attributions.

Article 3.- The regulation of the acts carried out within their respective territory by natural persons or legal entities or by any other entity domiciled therein, and whose influence on competition is limited to same, falls within the exclusive competence of each State.

CHAPTER II
REGARDING THE RESTRICTIVE CONDUCT AND PRACTICES OF COMPETITION

Article 4.- Constitute an infringement of the rules of the present Protocol, regardless of guilt, individual or concerted acts, of whatever kind, the purpose or final effect of which is to restrict, limit, falsify or distort competition or access to the market or which constitute an abuse of a dominant position in the relevant goods or services market in the framework of the MERCOSUR, and which affect trade between the States Parties.

Article 5.- Mere market conquest resulting from the natural process of the most efficient economic agent among competitors does not constitute any violation of competition.

Article 6.- The following forms of conduct, inter alia, insofar as they embody the hypotheses advanced in article 4, constitute practices which limit competition;

I. to fix, impose or practice, directly or indirectly, in collaboration with competitors or individually, in any form, the prices and conditions of the purchase or sale of goods, the providing of services or production;

II. to procure or to contribute to the adoption of uniform business practices or concerted action by competitors;

III. to regulate goods or service markets, entering into agreements to limit or control research and technological development, the production of goods or the supply of services, or to hinder investments intended for the production of goods or services or their distribution.

IV. to divide up the markets of finished or semifinished goods or services, or the supply source of raw materials and intermediate products.

V. to limit or prevent access of new enterprises to the market;

VI. to agree on prices or advantages which may affect competition in public bids;

VII. to adopt, with regard to third parties, unequal conditions for equivalent services, thus placing them at a competitive disadvantage;

VIII. to subordinate the sale of one good to the purchase of another good or to the use of a service, or to subordinate the supply of a service to the use of another or to the purchase of a good;

IX. to prevent the access of competitors to raw materials, investment goods or technologies, as well as to distribution channels;

X. to require or to grant exclusivity with respect to the dissemination of publicity in the communication media;

XI. to subordinate buying or selling to the condition of not using or acquiring, selling or supplying goods or services which are produced, processed, distributed or marketed by a third party;

XII. to sell merchandise, for reasons unfounded on business practices, at prices below the cost price;

XIII. to reject without good reason the sale of goods or the supply of services;

XIV. to interrupt or to reduce production on a large scale, without any justifiable cause;

XV. to destroy, render useless or accumulate raw materials, intermediate or finished goods, as well as to destroy, render useless or obstruct the functioning of equipment designed to produce, transport or distribute them.

XVI. to abandon, cause to be abandoned or destroy crops and plantations without just cause.

XVII. to manipulate the market in order to impose prices.

CHAPTER III
ON THE CONTROL OF ACTS AND CONTRACTS

Article 7.- The States Parties shall adopt, for the purpose of their incorporation in the regulations of the MERCOSUR, within the period of two years, common rules for the control of acts and contracts, of any kind, which may limit or in any way cause prejudice to free trade, or result in the domination of the relevant regional market of goods and services, including which result in economic concentration, with a view to preventing their possible anti-competitive effects in the framework of the MERCOSUR.

CHAPTER IV
ON THE ENFORCEMENT BODIES

Article 8.- Application of the present Protocol is applied by the Trade Commission of the MERCOSUR, in accordance with the terms of article 19 of the Protocol of Ouro Preto, and by the Committee for the Defense of Competition.

Single Paragraph - The Committee for the Defense of Competition, an organ of intergovernmental nature, shall be constituted by the national organs for the application of the present Protocol in each State Party.

Article 9.- The Committee for the Defense of Competition shall submit the rules of procedure of the present Protocol to the Trade Commission for approval;

CHAPTER V
ON THE ENFORCEMENT PROCEDURE

Article 10.- The national organs of application shall initiate the procedure provided through the present Protocol ex officio or through reasoned presentation by the legitimately concerned party, which should appear before the Committee for the Defense of Competition and present a preliminary technical evaluation;

Article 11.- The Committee for the Defense of Competition, following a preliminary technical analysis, shall initiate an inquiry or, ad referendum of the Trade Commission of MERCOSUR, shelve the case.

Article 12.- The Committee for the Defense of Competition shall regularly submit reports on the state of negotiations on the cases under consideration to the Trade Commission of the MERCOSUR.

Article 13.- In case of emergency or threat of irreparable damage to competition, the Committee for the Defense of Competition of the MERCOSUR shall determine, ad referendum of the Trade Commission of the MERCOSUR, the application of preventive measures, including the immediate cessation of the practice subject to inquiry, and the reestablishment of the prior situation or other measures which it deems necessary.

1. In case of non observance of the preventive measure, the Committee for the Defense of Competition may define, ad referendum of the Trade Commission of the MERCOSUR, application of a fine of the infringing party.

2.  Application of the preventive measure or of the fine shall be effected by the national organ of application of the State in the territory of which the defendant is domiciled.

Article 14.- The Committee for the Defense of Competition shall establish, in each case investigated, guidelines for the definition of, among other aspects, the relevant market structure, the evidence regarding conduct and analytical criteria of the economic effects of the investigated practice.

Article 15.- The national organ of application of the State in the territory of which the defendant is domiciled shall carry out the investigation of the restrictive practice of competition, bearing in mind the guidelines set forth in article 14.

1. The national enforcement bodies undertaking the investigation shall disseminate regular reports on its activities.
2. The exercise of the right of defense shall be guaranteed to the defendant.

Article 16.- The national organs of application of the other States Parties are responsible for assistance to the national enforcement body responsible for the investigation through contribution of information, documentation and other means considered essential to the correct execution of the investigation procedures.

Article 17.- In case of differences regarding the application of procedures set forth in this Protocol, the Committee for the Defense of Competition may request MERCOSUR Trade Commission for an opinion on the matter.

Article 18.- Once the process of investigation has en concluded the national body responsible for the investigation shall present a conclusive ruling on the matter to the Committee for the Defense of Competition.

Article 19.- The Committee for the Defense of Competition, taking into account the ruling of the national enforcement bodies, ad referendum of the Trade Commission of the MERCOSUR, shall decide on the infringing practices and shall establish the sanctions to be imposed or any other appropriate measures.

Single Paragraph -If the Committee for the Defense of Competition should not arrive at a consensus, it shall bring its conclusions before the Trade Commission of the MERCOSUR, noting existing differences.

Article 20.- The Trade Commission of the MERCOSUR, taking into account the ruling or the conclusions of the Committee for the Defense of Competition, shall make a ruling through adoption of a Directive, setting forth the sanctions to be applied to the infringing party or other appropriate measures.

1. The sanctions shall be applied by the national enforcement bodies of the State Party whose territory the infringing party is domiciled.
2.  If a consensus were not reached, MERCOSUR Trade Commission shall bring the different proposed solutions before the Common Market Group.

Article 21.- The Common Market Group shall make a ruling upon the matter through adoption of a resolution.  Single Paragraph - If the Common Market Group should not arrive at a consensus, the interested State Party could resort directly to the procedure set forth in chapter IV of the Brasilia Protocol on the Settlement of Disputes.

CHAPTER VI
UNDERTAKING OF CESSATION

Article 22.- At any stage of the procedure, the Committee for the Defense of Competition may ratify, ad referendum of MERCOSUR Trade Commission, an undertaking of cessation of the practice under investigation, which shall not imply a confession as to the facts nor recognition of the illicit nature of the conduct under analysis.

Article 23.- The Undertaking of Cessation shall necessarily include the following paragraphs:

a) the obligations of the defendant, in the sense of the cessation of the practice being investigated within the established period.
b) the value of the daily fine to be imposed in case of noncompliance with the Undertaking of Cessation.
c) the obligation of the defendant to submit regular reports on his activities in the market, keeping the national enforcement bodies informed of eventual changes in the company’s structure, control, activities and location.

Article 24.- The procedure shall be suspended when compliance with the Undertaking of Cessation has been reached and will be shelved upon conclusion of the established period, if all the conditions listed in the Undertaking are complied with.

Article 25.- The MERCOSUR Committee for the Defense of Competition may ratify modifications of the Undertaking of Cessation if the latter should prove to be an excessive burden for the defendant, and if the new situation should not constitute any infringement of competition.

Article 26.- The Undertaking of Cessation, changes in the Undertaking and the sanction referred to in the present Chapter shall be executed by the national enforcement bodies of the State Party in the territory of which the defendant is domiciled.

CHAPTER VII
ON SANCTIONS

Article 27.- The Committee for the Defense of Competition, ad referendum of the MERCOSUR Trade Commission, shall determine the definitive cessation of the infringing practice within a period of time to be specified.

In case of noncompliance with the order of cessation, the daily fine to be determined by the Committee for the Defense of Competition, ad referendum of the MERCOSUR Trade Commission.
  The order of cessation as well as imposition of the fine shall be executed by the national organ of application of the State Party in the territory of which the infringing party is domiciled.

Article 28.- In case of violation of the rules of procedure of the present Protocol the following sanctions shall be applied, either cumulatively or alternatively:

I. a fine, based on the earnings obtained from commission of the infringing practice, gross revenues or the assets involved which would be paid to the national enforcement bodies of the State Party in the territory of which the infringing party is domiciled.

II. prohibition to participate in the systems of public procurement in any of the States Parties, for a period of time to be determined.

III. prohibition to enter into contracts with public financial institutions of any of the States Parties, for a period of time to be determined.

The Committee for the Defense of Competition, ad referendum of the Trade Commission of the MERCOSUR, may recommend to the competent authorities of the States Parties that no incentives of any kind or terms of payment of tax obligations be granted to the infringing party.
  The penalties set forth in this article shall be executed by the national enforcement bodies of the State Party in the territory of which the infringing party is domiciled.

Article 29.- As regards the levels of the sanctions established in the present Protocol, the seriousness of the fact of the case and the significance of the damage caused to competition in the framework of the MERCOSUR should be considered.

CHAPTER VIII
ON COOPERATION

Article 30.- In order to ensure application of the present Protocol, the States Parties shall, through the respective national enforcement bodies, adopt mechanisms of cooperation and of technical consultation, so as:

a) to systematize and strengthen cooperation between the national organs and authorities responsible for the perfecting of the national systems and of the joint defense instruments of competition, through a program of the exchange, as well as of the joint investigation of the practices harmful to competition, through a program of exchange of information and experience, of the training of technicians and the accumulation of case law relative to the defense of competition, as well as of the joint investigation of practices harmful to competition in the MERCOSUR.
b) to identify and mobilize, by means of agreements of technical cooperation in the area of the defense of competition with other States or regional groups, the necessary resources for the implementation of programs of cooperation referred to in the preceding paragraph.

CHAPTER IX
ON THE SETTLEMENT OF DISPUTES

Article 31.- To the settlement of differences regarding the application, interpretation or nonobservance of the provisions contained in the present Protocol, the provisions of the Protocol of Brasilia and of the General Procedure for Complaints before the Trade Commission of the MERCOSUR set forth in the Annex to the Protocol of Ouro Preto shall applied.

CHAPTER X
FINAL AND TRANSITORIAL PROVISIONS

Article 32.- The States Parties undertake, within a two year period following entry into force of the present Protocol, and for purposes of their incorporation in this instrument, to draft joint standards and mechanisms which shall govern State aid which is susceptible to limit, restrict, falsify or distort competition and to affect trade between the States Parties.
To this end, progress made on the subject of public policies which distort competitiveness and the relevant standards of the WTO shall be taken into consideration.

Article 33.- The present Protocol, as an integral part of the Treaty of Asuncion, shall enter into force thirty days after the second instrument of ratification has been deposited, with respect to the first two States Parties ratifying it and, in the case of the other signatories, on the thirtieth day after the respective instrument of ratification has been deposited.

Article 34.- No provision of the present Protocol shall apply to the restrictive practices of competition the study of which has been initiated by the competent authority of a State Party before the entry into force provided in Article 33.

Article 35.- The present Protocol may be revised of common accord, on the proposal of one of the States Parties.

Article 36.- Adherence on the part of a State to the Treaty of Asuncion shall imply, ipso iure, adherence to the present Protocol.

Article 37.- The Government of the Republic of Paraguay shall be the depository of the present Protocol and of the instruments of ratification, and shall send duly authenticated copies of same to the Governments of the other States Parties.
Similarly, the Government of the Republic of Paraguay shall notify the Government of the other States Parties of the date of entry into force of the present Protocol, as well as of the date of deposit of the instruments of ratification.
Done in the city of Fortaleza, on the seventeenth day of the month of December of 1996, in one original in the Spanish and Portuguese languages, both these texts being equally authentic.

MERCOSUR/CMC/DEC No. 2/97

Annex to the Protocol For the Protection of Competition In MERCOSUR

HAVING SEEN: The Asuncion Treaty, the Ouro Preto Protocol, Decisions No. 21/94 and 18/96 of the Common Market Council, Resolution No. 129/94 of the Common Market Group, and the Minutes of the Twenty-first Meeting of the MERCOSUR Trade Committee,

CONSIDERING:
The importance of establishing criteria for quantifying the amount of fines provided for in the Protocol for the Protection of Competition in MERCOSUR, approved by Decision CMC No. 18/96,

The Common Market Council Decides:
Art. 1 To approve the following Annex to the Protocol for the Protection of Competition in MERCOSUR:

"ANNEX TO THE PROTOCOL FOR THE PROTECTION OF COMPETITION IN MERCOSUR":
Art. 1. The fines provided for in the present Protocol shall be equivalent to up to 150% of the profits obtained through the illegal practice; up to 100% of the value of the assets involved; or up to 30% of the value of the company's gross billing for its previous financial year, net of tax. Such fines may not be less than the advantage obtained, if quantifiable. Art. 2 In the specific cases referred to in Articles 13.1, 23.b, and 27.1 of the present Protocol, a daily fine of up to 1% of the company's gross billing for the previous financial period.

XII CMC - Asuncion, 18/VI/97

TREATY ON FREE TRADE OF THE GROUP OF THREE BETWEEN THE REPUBLIC OF COLOMBIA,
THE UNITED MEXICAN STATES AND THE REPUBLIC OF VENEZUELA⁴

CHAPTER XVI
POLICY REGARDING STATE ENTERPRISES

Article 16-01: Definitions

For the purposes of this Chapter:

designation means the establishment, authorization, or expansion of the scope of a government monopoly to include an additional good or service, after the date of entry into force of this Agreement;

enterprise means any entity constituted or organized under applicable law, whether or not for profit, including any corporation, trust, partnership, sole proprietorship, joint venture, or other association, with the exception of State enterprises;

State enterprise means an enterprise owned, or controlled through ownership interests, by a Party;

market means the geographic and commercial market for a good or service;

monopoly means an entity, including a government consortium or agency that has been designated in any relevant market in the territory of one of the parties as the sole provider or buyer of a good or service. This does not include an entity with exclusive intellectual property rights derived only from that grant.

government monopoly means a monopoly owned by a Party or another government monopoly, or under its control by virtue of ownership of part of its equity.

in accordance with commercial considerations means consistent with normal business practices of the private enterprises in the relevant industry;

non-discriminatory treatment means the better of national treatment and most-favored-nation treatment, as set out in the relevant provisions of this Agreement.

Article 16-02: Monopolies and State Enterprises

1. Each Party shall ensure that its State enterprises accord non-discriminatory treatment in its territory to the natural or legal persons of the other Parties in the sale of goods and the provision of services for similar commercial transactions.
    
2. Each Party undertakes to ensure that its government monopolies and its State enterprises:

1.  act solely in accordance with commercial considerations in the purchase or sale of the monopoly good or service in the relevant market in the territory of that Party, including with regard to price, quality, availability, marketability, transportation, and other terms and conditions of purchase or sale; and
2. do not use their monopoly position in their territory to engage in anti-competitive practices in a non-monopolized market that could adversely affect persons of the other Party.

1. Paragraph 2 shall not apply to procurement by government monopolies or State enterprises of goods or services for governmental purposes, and:

1. not with a view to commercial resale;
2. not with a view to use in the production of goods for commercial sale; or
3. not with a view to use in the provision of services for commercial sale.

1.  With regard to the sales price of a good or service, paragraph 2(a) shall apply only to the sale by government monopolies and State enterprises of:

1. goods or services to persons engaged in the production of industrial goods;
2. services to persons engaged in commercial resale; or
3. services to enterprises that produce industrial goods.

1. The provisions of paragraph 2(a) shall not apply to those activities of a government monopoly that are carried out in compliance with the terms of its designation and with the principles established in paragraphs 1 and 2(b).

Article 16-03: Committees

Within three months of the entry into force of this Agreement, the Commission shall establish the following committees:

1. a Committee on Competition, composed of representatives of each Party, which shall submit reports and recommendations to the Commission on further work on relevant issues concerning the relationship between competition laws and policies and trade in the free-trade area; and
2. a Committee which, with a view to detecting practices by State enterprises that could be discriminatory or inconsistent with the provisions of this Chapter, will draft reports and recommendations with regard to such practices.

AGREEMENT BETWEEN THE GOVERNMENT OF UNITED STATES AND THE GOVERNMENT OF CANADA REGARDING THE APPLICATION OF THEIR COMPETITION AND DECEPTIVE MARKETING PRACTICE LAWS

The Government of the United States of America and the Government of Canada (hereinafter referred to as "Parties");
Having regard to their close economic relations and cooperation within the framework of the North American Free Trade Agreement ("NAFTA");
Noting that the sound and effective enforcement of their competition laws is a matter of importance to the efficient operation of markets within the free trade area and to the economic welfare of the Parties’ citizens;
Having regard to their commitment in Chapter 15 of NAFTA to the importance of cooperation and coordination among their competition authorities to further effective competition law enforcement in the free trade area;
Recognizing that coordination of enforcement activities may, in appropriate cases, result in a more effective resolution of the Parties’ respective concerns than would be attained through independent action;
Having regard to the fact that the effective enforcement of their laws relating to deceptive marketing practices is also a matter of importance to the efficient operation of markets within the free trade area, and having regard to the potential benefits of increased cooperation between the Parties in the enforcement of those laws;
Noting that from time to time differences may arise between the Parties concerning the application of their competition laws to conduct or transactions that implicate the important interests of both Parties;
Noting further their commitment to give careful consideration to each others important interest in the application of their competition laws; and
Having regard to the long history of cooperation between the Parties in matters relating to competition law, including the bilateral Understandings of 1959, 1969 and 1984, as well as the 1986 Recommendations of the Council of the OECD Concerning Cooperation Between Member Countries on Restrictive Business Practices Affecting International Trade;
Have agreed as follows:

Article I: Purpose and Definitions

1. The purpose of this Agreement is to promote cooperation and coordination between the competition authorities of the Parties, to avoid conflicts arising from the application of the Parties’ competition laws and to minimize the impact of differences on their respective important interests, and, in addition, to establish a framework for cooperation and coordination with respect to enforcement of deceptive marketing practices laws.

2. For the purposes of this Agreement, the following terms shall have the following definitions:

1. "Anticompetitive activity(ies)" means any conduct or transaction that may be subject to penalties or other relief under the competition laws a Party;
2.  "Competition authority(ies)" means

1.  for Canada, the Director of Investigation and Research;
2.  for the United States of America, the United States Department of Justice and the Federal Trade Commission;

1. "Competition law(s)" means

1.  for Canada, the Competition Act, R.S.C. 1985, c. C-34, except sections 52 through 60 of that Act;
2. for the United States of America, the Sherman Act (15 U.S.C. §§ 1-7), the Clayton Act (15 U.S.C. §§ 12-27), the Wilson Tariff Act (15 U.S.C. §§ 8-11) and the Federal Trade Commission Act (15 U.S.C. §§ 41-58), to the extent that it applies to unfair methods of competition,

as well as any amendments thereto, and such other laws or regulations as the Parties may from time to time agree in writing to be a "competition law" for the purposes of this Agreement; and

1. "Enforcement activity(ies)" means any investigation or proceeding conducted by a Party in relation to its competition laws.

3. Any reference in this Agreement to a specific provision in either Party's competition law shall be interpreted as referring to that provisions as amended from time to time an to any successor provision thereof.  Each Party shall promptly notify the other of any amendments to its competition laws. Any reference in this Agreement to a specific provision in either Party’s competition law shall be interpreted as referring to that provision as amended from time to time and to any successor provision thereof. Each Party shall promptly notify the other of any amendments to its competition laws.

Article II: Notification

1. Each Party shall, subject to Article X(1), notify the other Party in the manner provided by this Article and Article XII with respect to its enforcement activities that may affect important interests of the other Party.

2.  Enforcement activities that may affect the important interests of the other Party and therefore ordinarily require notification include those that:

1. relevant to enforcement activities of the other Party;
2. involve anticompetitive activities, other than mergers or acquisitions, carried out in whole or in part in the territory of the other Party, except where the activities occurring in the territory of the other Party are insubstantial;
3. involve mergers or acquisitions in which

o one or more of the parties to the transaction, or
o a company controlling one or more of the parties to the transaction.

is a company incorporated or organized under the laws of the other Party or of one of its provinces or states;

1. involve conduct believed to have been required, encouraged or approved by the other Party;
2. involve remedies that expressly require or prohibit conduct in the territory of the other Party or are otherwise directed at conduct in the territory of the other Party;
3.  or involve the seeking of information located in the territory of the other Party, whether by personal visit by officials of a Party to the territory of the other Party or otherwise.

3. Notification pursuant to this Article shall ordinarily be given as soon as a Party's competition authorities become aware that notifiable

4. Where notifiable circumstances are present with respect to mergers or acquisitions, notification shall be given not later than

1. in the case of the United States of America, the time its competition authorities seek information or documentary material concerning the proposed transaction pursuant to the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (15 U.S.C. 18a(e)), the Federal Trade Commission Act (15 U.S.C. 49, 57b-1) or the Antitrust Civil Process Act (15 U.S.C. 1312);
   and
2. in the case of Canada, the time its competition authorities issue a written request for the information under oath or affirmation, or obtain an order under section 11 of the Competition Act, with respect to the transaction.

5. When the competition authorities of a Party request that a person provide information, documents or other records located in the territory of the other Party, or request oral testimony in a proceeding or participation in a personal interview by a person located in the territory of the other Party, notification shall be given:

1. a. if compliance with a request for written information, documents or other records is voluntary, at or before the time that the request is made;
2. if compliance with a request for written information, documents or other records is compulsory, at least seven (7) days prior to the request, (or, when seven (7) days’ notice cannot be given, as promptly as circumstances permit); and
3. in the case of oral testimony or personal interviews, at or before the time arrangements for the interview or testimony are made.

Notification is not required with respect to telephone contacts with a person in the territory of the other Party where (i) that person is not he subject of an investigation, (ii) the contact seeks only an oral response on a voluntary basis (although the availability and possible voluntary provision of documents may be discussed) and (iii) the other Party’s important interests do not appear to be otherwise implicated, unless the other Party requests otherwise in relation to a particular matter.
Notification is not required for each subsequent request for information in relation to the same matter unless the Party seeking information becomes aware of new issues bearing on the important interests of the other Party, or the other Party requests otherwise in relation to a particular matter.

6. The Parties acknowledge that officials of either Party may visit the territory of the other Party in the course of conducting investigations pursuant to their respective competition laws. Such visits shall be subject to notification pursuant to this Article and the consent of the notified Party.

7. Notification shall also be given at least seven (7) days in advance of each of the following where notifiable circumstances are present:

1. in the case of the United States of America, the issuance of a complaint, the filing of a civil action seeking a temporary restraining order or preliminary injunction or the initiation of criminal proceedings;
2. in the case of Canada, the filing of an application with the Competition Tribunal, an application under Part IV of the Competition Act or the initiation of criminal proceedings;

1. the settlement of a matter by way of an undertaking, an application F.O. a consent order or the filing or issuance of a proposed consent order or decree; and
2. the issuance of a business review or advisory opinion that will ultimately be made public by the competition authorities.

When seven (7) days’ notice cannot be given, notice shall be given as promptly as circumstances permit.

8. Each Party shall also notify the other whenever its competition authorities intervene or otherwise publicly participate in a regulatory or judicial proceeding that is not initiated by the competition authorities if the issue addressed in the intervention or participation may affect the other Party’s important interests. Such notification shall be made at the time of the intervention or participation or as soon thereafter as possible.

9. Notifications shall be sufficiently detailed to enable the notified Party to make an initial evaluation of the effect of the enforcement activity on its own important interests, and shall include the nature of the activities under investigation and the legal provisions concerned. Where possible, notifications shall include the names and locations of the persons involved. Notifications concerning a proposed undertaking, consent order or decree shall either include or, as soon as practicable be followed by, copies of the proposed undertaking, order or decree and any competitive impact statement or agreed statement of facts relating to the matter.

Article III: Enforcement Cooperation

1. The Parties acknowledge that it is in their common interest to cooperate in the detection of anticompetitive activities and the enforcement of their competition laws to the extent compatible with their respective laws and important interests, and within their reasonably available resources.
2. The Parties further acknowledge that it is in their common interest to share information which will facilitate the effective application of their competition laws and promote better understanding of each other’s enforcement policies and activities.

1. The Parties will consider adopting such further arrangements as may be feasible and desirable to enhance cooperation in the enforcement of their competition laws.
2. Each Party’s competition authorities will, to the extent compatible with that Party’s laws, enforcement policies and other important interests,
   1. assist the other Party’s competition authorities, upon request, in locating and securing evidence and witnesses, and in securing voluntary compliance with requests for information, in the requested Party’s territory;
   2. inform the other Party’s competition authorities with respect to enforcement activities involving conduct that may also have an adverse effect on competition within the territory of the other Party;
   3. provide to the other Party’s competition authorities, upon request, such information within its possession as the requesting Party’s competition authorities may specify that is relevant to the requesting Party’s enforcement activities; and
   4. provide the other Party’s competition authorities with any significant information that comes to their attention about anticompetitive activities that may be relevant to, or may warrant, enforcement activity by the other Party’s competition authorities.

1. Nothing in this Agreement shall prevent the Parties from seeking or providing assistance to one another pursuant to other agreements, treaties, arrangements or practices between them.

Article IV: Coordination With Regard to Related Matters

1. Where both Parties’ competition authorities are pursuing enforcement activities with regard to related matters, they will consider coordination of their enforcement activities. In such matters, the Parties may invoke such mutual assistance arrangements as may be in force from time to time.
    
2. In considering whether particular enforcement activities should be coordinated, either in whole or in part, the Parties’ competition authorities shall take into account the following factors, among others:

1. a. the effect of such coordination on the ability of both Parties to achieve their respective enforcement objectives;
2. the relative abilities of the Parties’ competition authorities to obtain information necessary to conduct the enforcement activities;
3. the extent to which either Party’s competition authorities can secure effective relief against the anticompetitive activities involved;
4. the possible reduction of cost to the Parties and to the persons subject to enforcement activities; and
5. the potential advantages of coordinated remedies to the Parties and to the persons subject to the enforcement activities.

1. In any coordination arrangement, each Party’s competition authorities shall seek to conduct their enforcement activities consistently with the enforcement objectives of the other Party’s competition authorities.
    
2. In the case of concurrent or coordinated enforcement activities, the competition authorities of each Party shall consider, upon request by the competition authorities of the other Party and where consistent with the requested Party’s enforcement interests, ascertaining whether persons that have provided confidential information in connection with those enforcement activities will consent to the sharing of such information between the Parties’ competition authorities.
    
3. Either Party’s competition authorities may at any time notify the other Party’s competition authorities that they intend to limit or terminate coordinated enforcement and pursue their enforcement activities independently and subject to the other provisions of this Agreement.

Article V: Cooperation Regarding Anticompetitive Activities in the Territory of One Party That Adversely Affect the Interests of the Other Party

1. The Parties note that anticompetitive activities may occur within the territory of one Party that, in addition to violating that Party’s competition laws, adversely affect important interests of the other Party. The Parties agree that it is in their common interest to seek relief against anticompetitive activities of this nature.
    
2. If a Party believes that anticompetitive activities carried out in the territory of the other Party adversely affect its important interests, the first Party may request that the other Party’s competition authorities initiate appropriate enforcement activities. The request shall be as specific as possible about the nature of the anticompetitive activities and their effects on the interests of the Party, and shall include an offer of such further information and other cooperation as the requesting Party’s competition authorities are able to provide.
    
3. The requested Party’s competition authorities shall carefully consider whether to initiate enforcement activities, or to expand ongoing enforcement activities, with respect to the anticompetitive activities identified in the request. The requested Party’s competition authorities shall promptly inform the requesting Party of its decision. If enforcement activities are initiated, the requested Party’s competition authorities shall advise the requesting Party of their outcome and, to the extent possible, of significant interim developments.
    
4. Nothing in this Article limits the discretion of the requested Party’s competition authorities under its competition laws and enforcement policies as to whether to undertake enforcement activities with respect to the anticompetitive activities identified in a request, or precludes the requesting Party’s competition authorities from undertaking enforcement activities with respect to such anticompetitive activities.

Article VI: Avoidance of Conflicts
 

1. Within the framework of its own laws and to the extent compatible with its important interests, each Party shall, having regard to the purpose of this Agreement as set out in Article I, give careful consideration to the other Party’s important interests throughout all phases of its enforcement activities, including decisions regarding the initiation of an investigation or proceeding, the scope of an investigation or proceeding and the nature of the remedies or penalties sought in each case
    
2. When a Party informs the other that a specific enforcement activity may affect the first Party’s important interests, the second Party shall provide timely notice of developments of significance to those interests.
    
3. While an important interest of a Party may exist in the absence of official involvement by the Party with the activity in question, it is recognized that such interest would normally be reflected in antecedent laws, decisions or statements of policy by its competent authorities. A Party’s important interests may be affected at any stage of enforcement activity by the other Party.
    
4. The Parties recognize the desirability of minimizing any adverse effects of their enforcement activities on each other’s important interests, particularly in the choice of remedies. Typically, the potential for adverse impact on one Party’s important interests arising from enforcement activity by the other Party is less at the investigative stage and greater at the stage at which conduct is prohibited or penalized, or at which other forms of remedial orders are imposed.
    
5. Where it appears that one Party’s enforcement activities may adversely affect the important interests of the other Party, each Party shall, in assessing what measures it will take, consider all appropriate factors, which may include but are not limited to:

1. the relative significance to the anticompetitive activities involved of conduct occurring within one Party’s territory as compared to conduct occurring within that of the other;
2. the relative significance and foreseeability of the effects of the anticompetitive activities on one Party’s important interests as compared to the effects on the other Party’s important interests;
3. the presence or absence of a purpose on the part of those engaged in the anticompetitive activities to affect consumers, suppliers or competitors within the enforcing Party’s territory;
4. the degree of conflict or consistency between the first Party’s enforcement activities (including remedies) and the other Party’s laws or other important interests;
5. whether private persons, either natural or legal, will be placed under conflicting requirements by other Parties;
6. the existence or absence of reasonable expectations that would be furthered or defeated by the enforcement activities;
7. the location of relevant assets;
8. the degree to which a remedy, in order to be effective, must be carried out within the other Party’s territory; and
9. the extent to which enforcement activities of the other Party with respect to the same persons, including judgements or undertakings resulting from such activities, would be affected.

Article VII: Cooperation and Coordination With Respect to Enforcement of Deceptive Marketing Practices Laws

1. For the purposes of this Agreement, "deceptive marketing practices law(s)" means:
   1. a. for Canada, sections 52 through 60 of the Competition Act;
   2. for the United States of America, the Federal Trade Commission Act (15 U.S.C. §§ 41-58), to the extent that it applies to unfair or deceptive acts or practices;

as well as any amendments thereto, and such other laws or regulations as the Parties may from time to time agree in writing to be a "deceptive marketing practices law" for purposes of this Agreement. Each Party shall promptly notify the other of any amendments to its deceptive marketing practices laws.

1. The Parties note that conduct occurring in the territory of one Party may contribute to violations of the deceptive marketing practices laws of the other Party and that it is in their common interest for the Director of Investigation and Research and the Federal Trade Commission to cooperate in the enforcement of those laws. The Parties further note that the Director of Investigation and Research and the Federal Trade Commission have in the past cooperated with each other and coordinated their activities with respect to deceptive marketing practices matters on an informal basis. The Parties wish to establish a more formal framework for continuing and broadening such cooperation and coordination.
    
2. The Director of Investigation and Research and the Federal Trade Commission shall, to the extent compatible with their laws, enforcement policies and other important interests:

1. use their best efforts to cooperate in the detection of deceptive marketing practices;
2. inform each other as soon as practicable of investigations and proceedings involving deceptive marketing practices occurring or originating in the territory of the other Party, or that affect consumers or markets in the territory of the other Party;
3. share information relating to the enforcement of their deceptive marketing practices laws; and
4. in appropriate cases, coordinate their enforcement against deceptive marketing practices with a transborder dimension.

1. In furtherance of these objectives, the Director of Investigation and Research and the Federal Trade Commission shall jointly study further measures to enhance the scope and effectiveness of information sharing, cooperation and coordination in the enforcement of deceptive marketing practices laws.
2. Nothing in this Article shall prevent the Parties from seeking or providing assistance to one another with respect to the enforcement of their deceptive marketing practices laws pursuant to other agreements, treaties, arrangements or practices between them.
3. Articles II, III, IV, V and VI shall not apply to deceptive marketing practices.

Article VIII: Consultations

1. Either Party may request consultations regarding any matter relating to this Agreement. The request for consultations shall indicate the reasons for the request and whether any procedural time limits or other constraints require that consultations be expedited. Each Party shall consult promptly when so requested with the view to reaching a conclusion that is consistent with the principles set forth in this Agreement.
2. Consultations under this Article shall take place at the appropriate level as determined by each Party.
3. During consultations under this Article, each Party shall provide to the other as much information as it is able in order to facilitate the broadest possible discussion regarding the relevant aspects of the matter that is the subject of consultations. Each Party shall carefully consider the representations of the other Party in light of the principles set out in this Agreement and shall be prepared to explain the specific results of its application of those principles to the matter that is the subject of consultations.

Article IX: Semi-Annual Meetings

Officials of the Parties’ competition authorities shall meet at least twice a year to:

1. exchange information on their current enforcement efforts and priorities in relation to their competition and deceptive marketing practices laws;
2. exchange information on economic sectors of common interest;
3. discuss policy changes that they are considering; and
4. discuss other matters of mutual interest relating to the application of their competition and deceptive marketing practices laws and the operation of this Agreement.

Article X: Confidentiality of Information

1. Notwithstanding any other provision of this Agreement, neither Party is required to communicate information to the other Party if such communication is prohibited by the laws of the Party possessing the information or would be incompatible with that Party’s important interests.
2. Unless otherwise agreed by the Parties, each Party shall, to the fullest extent possible, maintain the confidentiality of any information communicated to it in confidence by the other Party under this Agreement. Each Party shall oppose, to the fullest extent possible consistent with that Party’s laws, any application by a third party for disclosure of such confidential information.
3. The degree to which either Party communicates information to the other pursuant to this Agreement may be subject to and dependent upon the acceptability of the assurances given by the other Party with respect to confidentiality and with respect to the purposes for which the information will be used.
4.  

1.  Notifications and consultations pursuant to Articles II and VIII of this Agreement and other communications between the Parties in relation thereto shall be deemed to be confidential.
2. Party may not, without the consent of the other Party, communicate to its state or provincial authorities information received from the other Party pursuant to notifications or consultations under this Agreement. The Party providing the information shall consider requests for consent sympathetically, taking into account the other Party’s reasons for seeking disclosure, the risk, if any, that disclosure would pose for its enforcement activities, and any other relevant considerations.
3. The notified Party may, after the notifying Party’s competition authorities have advised a person who is the subject of a notification of the enforcement activities referred to in the notification, communicate the fact of the notification to, and consult with that person concerning the subject of the notification. The notifying Party shall, upon request, promptly inform the notified Party of the time at which the person has, or will be, advised of the enforcement activities in question.

1. Subject to paragraph 2, information communicated in confidence by a Party’s competition authorities to the competition authorities of the other Party in the context of enforcement cooperation or coordination pursuant to Articles III, IV or V of this Agreement shall not be communicated to third parties or to other agencies of the receiving competition authorities’ government, without the consent of the competition authorities that provided the information. A Party’s competition authorities may, however, communicate such information to the Party’s law enforcement officials for the purpose of competition law enforcement.
2. Information communicated in confidence by a Party’s competition authorities to the competition authorities of the other Party in the context of enforcement cooperation or coordination pursuant to Articles III, IV or V of this Agreement shall not be used for purposes other than competition law enforcement, without the consent of the competition authorities that provided the information.
3. Subject to paragraph 2, information communicated in confidence between the Director of Investigation and Research and the Federal Trade Commission in the context of enforcement cooperation or coordination pursuant to Article VII of this Agreement shall not be communicated to third parties or to other agencies of the receiving agency’s government, without the consent of the agency that provided the information. The receiving agency of a Party may, however, communicate such information to the Party’s law enforcement officials for the purpose of enforcement of deceptive marketing practices laws.
4. Information communicated in confidence between the Director of Investigation and Research and the Federal Trade Commission in the context of enforcement cooperation or coordination pursuant to Article VII of this Agreement shall not be used for purposes other than enforcement of deceptive marketing practices laws, without the consent of the agency that provided the information.

Article XI: Existing Laws

Nothing in this Agreement shall require a Party to take any action, or to refrain from acting, in a manner that is inconsistent with its existing laws, or require any change in the laws of the Parties or of their respective provinces or states.

Article XII: Communications Under This Agreement

Communications under this Agreement may be carried out by direct communication between the competition authorities of the Parties. Notifications under Article II and requests under Articles V(2) and VIII(1) shall, however, be confirmed promptly in writing through customary diplomatic channels and shall refer to the initial communication between the competition authorities and repeat the information supplied therein.

Article XIII: Entry into Force and Termination

5. This Agreement shall enter into force upon signature.
6. This Agreement shall remain in force until 60 days after the date on which either Party notifies the other Party in writing that it wishes to terminate this Agreement.

IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective Governments, have signed this Agreement.

DONE at Washington, in duplicate, this day of August, 1995, and at Ottawa, this day of August, 1995, in the English and French languages, each text being equally authentic.

AGREEMENT BETWEEN
THE GOVERNMENT OF THE UNITED STATES OF AMERICA
AND
THE GOVERNMENT OF THE UNITED MEXICAN STATES
REGARDING THE APPLICATION OF THEIR COMPETITION LAWS

The Government of the United States of America and the Government of the United Mexican States (hereinafter referred to as "Parties");
Having regard to their close economic relations and cooperation within the framework of the North American Free Trade Agreement ("NAFTA");
Noting that the sound and effective enforcement of their competition laws is a matter of importance to the efficient operation of markets within the free trade area and to the economic welfare of the Parties' citizens;
Having regard to their commitment in Chapter 15 of NAFTA to the importance of cooperation and coordination among their competition authorities to further effective competition law enforcement in the free trade area;
Recognizing that coordination of enforcement activities under the Parties' competition laws may, in appropriate cases, result in a more effective resolution of the Parties' respective concerns than would be attained through independent action;
Further recognizing that technical cooperation between the Parties' competition authorities will contribute to improving and strengthening their relationship;
Noting that from time to time differences may arise between the Parties concerning the application of their competition laws to conduct or transactions that implicate the important interests of both Parties;
Noting further their commitment to give careful consideration to each other's important interests in the application of their competition laws; and
Having regard to the growing cooperation between the Parties in matters relating to competition law, including the 1995 Recommendation of the Council of the OECD Concerning Cooperation Between Member Countries on Anticompetitive Practices Affecting International Trade, the 1998 Recommendation of the Council of the OECD Concerning Effective Action Against Hard Core Cartels, and the Communiqué issued at the Panama Antitrust Summit Meeting in October 1998;
Have agreed as follows:

Article I
PURPOSE AND DEFINITIONS

1. The purposes of this Agreement are to promote cooperation, including both enforcement and technical cooperation, and coordination between the competition authorities of the Parties, to avoid conflicts arising from the application of the Parties' competition laws, and to minimize the impact on their respective important interests of any differences that may arise.

2. For the purposes of this Agreement, the following terms shall have the following definitions:
"Anticompetitive activity(ies)" means any conduct or transaction that may be subject to penalties or relief under the competition laws of a Party;
"Competition authority(ies)" means
for the United Mexican States, the Federal Competition Commission;
for the United States of America, the United States Department of Justice and the Federal Trade Commission;
"Competition law(s)" means
for the United Mexican States, the Federal Law of Economic Competition of December 24, 1992, except for Articles 14 and 15, and the Regulations of the Federal Law of Economic Competition of March 4, 1998, except for article 8; for the United States of America, the Sherman Act (15 U.S.C. §§ 1-7), the Clayton Act (15 U.S.C. §§ 12-27), the Wilson Tariff Act (15 U.S.C. §§ 8-11) and the Federal Trade Commission Act (15 U.S.C. §§ 41-58), to the extent that it applies to unfair methods of competition, as well as any amendments thereto, and such other laws or regulations as the Parties may from time to time agree in writing to be a "competition law" for the purposes of this Agreement; and
"Enforcement activity(ies)" means any investigation or proceeding conducted by a Party in relation to its competition laws.

3. Any reference in this Agreement to a specific provision in either Party's competition law shall be interpreted as referring to that provision as amended from time to time and to any successor provision thereof. Each Party shall promptly notify the other of any amendments to its competition laws.

Article II
NOTIFICATION

1. Each Party shall, subject to Article X(1), notify the other Party in the manner provided by this Article and Article XII with respect to its enforcement activities that may affect important interests of the other Party.

2. Enforcement activities that may affect the important interests of the other Party and therefore ordinarily require notification include those that:
re relevant to enforcement activities of the other Party;
involve anticompetitive activities, other than mergers or acquisitions, carried out in whole or in substantial part in the territory of the other Party;
involve mergers or acquisitions in which one or more of the parties to the transaction, or a company controlling one or more of the parties to the transaction, is a company incorporated or organized under the laws of the other Party or of one of its States;
involve conduct believed to have been required, encouraged or approved by the other Party;
involve remedies that expressly require or prohibit conduct in the territory of the other Party or are otherwise directed at conduct in the territory of the other Party; or
involve the seeking of information located in the territory of the other Party.

3. Notification pursuant to this Article shall ordinarily be given as soon as a Party's competition authorities become aware that notifiable circumstances are present, and in any event in sufficient time to permit the views of the other Party to be taken into account.

4. When the competition authorities of a Party request that a person provide information, documents or other records located in the territory of the notified Party, or request oral testimony in a proceeding or participation in a personal interview by a person located in the territory of the notified Party, notification shall be given:
if compliance with a request for written information, documents or other records is voluntary, at or before the time that the request is made;
if compliance with a request for written information, documents or other records is compulsory, at least seven (7) days prior to the request, (or, when seven (7) days' notice cannot be given, as promptly as circumstances permit); and
in the case of oral testimony or personal interviews, at or before the time arrangements for the interview or testimony are made.

5. Notification that would otherwise be required by this Article is not required with respect to telephone contacts with a person where:
that person is not the subject of an investigation,
the contact seeks only an oral response on a voluntary basis (although the availability and possible voluntary provision of documents may be discussed), and
the other Party's important interests do not appear to be otherwise implicated, unless the other Party requests such notification in relation to a particular matter.

6. Notification is not required for each subsequent request for information in relation to the same matter unless the Party seeking information becomes aware of new issues bearing on the important interests of the other Party, or the other Party requests otherwise in relation to a particular matter.

7. The Parties acknowledge that officials of either Party may visit the territory of the other Party in the course of conducting investigations pursuant to their respective competition laws. Such visits shall be subject to notification pursuant to this Article and the consent of the notified Party.

8. Notifications shall be sufficiently detailed to enable the notified Party to make an initial evaluation of the effect of the enforcement activity on its own important interests, and shall include the nature of the activities under investigation and the legal provisions concerned. Where possible, notifications shall include the names and locations of the persons involved. Notifications concerning a proposed conditioned approval, consent order or decree shall either include or, as soon as practicable be followed by, copies of the proposed conditioned approval, order or decree and any competitive impact statement relating to the matter.

9. Each Party shall also notify the other whenever its competition authorities intervene or otherwise publicly participate in a regulatory or judicial proceeding that is not an enforcement activity if the issue addressed in the intervention or participation may affect the other Party's important interests. Such notification shall be made at the time of the intervention or participation or as soon thereafter as possible.

Article III
ENFORCEMENT COOPERATION

1. The Parties acknowledge that it is in their common interest to cooperate in the detection of anticompetitive activities and the enforcement of their competition laws to the extent compatible with their respective laws and important interests, and within their reasonably available resources.
The Parties further acknowledge that it is in their common interest to share information which will facilitate the effective application of their competition laws and promote better understanding of each other's enforcement policies and activities.

2. The Parties will consider adopting such further arrangements as may be feasible and desirable to enhance cooperation in the enforcement of their competition laws.

3. Each Party's competition authorities will, to the extent compatible with that Party's laws, enforcement policies and other important interests:
assist the other Party's competition authorities, upon request, in locating and obtaining evidence and witnesses, and in obtaining voluntary compliance with requests for information, in the requested Party's territory;
inform the other Party's competition authorities with respect to enforcement activities involving conduct that may also have an adverse effect on competition within the territory of the other Party;
provide to the other Party's competition authorities, upon request, such information within its possession as the requesting Party's competition authorities may specify that is relevant to the requesting Party's enforcement activities; and
provide the other Party's competition authorities with any significant information that comes to their attention about anticompetitive activities that may be relevant to, or may warrant, enforcement activity by the other Party's competition authorities.

4. Nothing in this Agreement shall prevent the Parties from seeking or providing assistance to one another pursuant to other agreements, treaties, arrangements or practices between them.

Article IV
COORDINATION WITH REGARD TO RELATED MATTERS

1. Where both Parties' competition authorities are pursuing enforcement activities with regard to related matters, they will consider coordination of their enforcement activities. In such matters, the Parties may invoke such mutual assistance arrangements as may be in force from time to time.

2. In considering whether particular enforcement activities should be coordinated, either in whole or in part, the Parties' competition authorities shall take into account the following factors, among others:
the effect of such coordination on the ability of both Parties to achieve their respective enforcement objectives;
the relative abilities of the Parties' competition authorities to obtain information necessary to conduct the enforcement activities;
the extent to which either Party's competition authorities can secure effective relief against the anticompetitive activities involved;
the possible reduction of cost to the Parties and to the persons subject to enforcement activities; and
the potential advantages of coordinated remedies to the Parties and to the persons subject to the enforcement activities.

3. In any coordination arrangement, each Party's competition authorities shall seek to conduct their enforcement activities consistently with the enforcement objectives of the other Party's competition authorities.

4. In the case of concurrent or coordinated enforcement activities, the competition authorities of each Party shall consider, upon request by the competition authorities of the other Party and where consistent with the requested Party's enforcement interests, ascertaining whether persons that have provided confidential information in connection with those enforcement activities will consent to the sharing of such information between the Parties' competition authorities.

5. Either Party's competition authorities may at any time notify the other Party's competition authorities that they intend to limit or terminate coordinated enforcement and pursue their enforcement activities independently and subject to the other provisions of this Agreement.

Article V
COOPERATION REGARDING ANTICOMPETITIVE ACTIVITIES IN THE
TERRITORY OF ONE PARTY THAT ADVERSELY AFFECT THE INTERESTS
OF THE OTHER PARTY

1. The Parties note that anticompetitive activities may occur within the territory of one Party that, in addition to violating that Party's competition laws, adversely affect important interests of the other Party. The Parties agree that it is in their common interest to seek relief against anticompetitive activities of this nature.

2. If a Party believes that anticompetitive activities carried out in the territory of the other Party adversely affect its important interests, the first Party may request that the other Party's competition authorities initiate appropriate enforcement activities. The request shall be as specific as possible about the nature of the anticompetitive activities and their effects on the interests of the Party, and shall include an offer of such further information and other cooperation as the requesting Party's competition authorities are able to provide.

3. The requested Party's competition authorities shall carefully consider whether to initiate enforcement activities, or to expand ongoing enforcement activities, with respect to the anticompetitive activities identified in the request. The requested Party's competition authorities shall promptly inform the requesting Party of its decision. If enforcement activities are initiated, the requested Party's competition authorities shall advise the requesting Party of their outcome and, to the extent possible, of significant interim developments.

4. Nothing in this Article limits the discretion of the requested Party's competition authorities under its competition laws and enforcement policies as to whether to undertake enforcement activities with respect to the anticompetitive activities identified in a request, or precludes the requesting Party's competition authorities from undertaking enforcement activities with respect to such anticompetitive activities.

Article VI
AVOIDANCE OF CONFLICTS

1. Within the framework of its own laws and to the extent compatible with its important interests, each Party shall, having regard to the purpose of this Agreement as set out in Article I, give careful consideration to the other Party's important interests throughout all phases of its enforcement activities, including decisions regarding the initiation of an investigation or proceeding, the scope of an investigation or proceeding and the nature of the remedies or penalties sought in each case.

2. When a Party informs the other that a specific enforcement activity may affect the first Party's important interests, the second Party shall provide timely notice of developments of significance to those interests.

3. While an important interest of a Party may exist in the absence of official involvement by the Party with the activity in question, it is recognized that such interest would normally be reflected in antecedent laws, decisions or statements of policy by its competent authorities.

4. A Party's important interests may be affected at any stage of enforcement activity by the other Party. The Parties recognize the desirability of minimizing any adverse effects of their enforcement activities on each other's important interests, particularly in the choice of remedies. Typically, the potential for adverse impact on one Party's important interests arising from enforcement activity by the other Party is less at the investigative stage and greater at the stage at which conduct is prohibited or penalized, or at which other forms of remedial orders are imposed.

5. Where it appears that one Party's enforcement activities may adversely affect the important interests of the other Party, each Party shall, in assessing what measures it will take, consider all appropriate factors, which may include but are not limited to:
the relative significance to the anticompetitive activities involved of conduct occurring within one Party's territory as compared to conduct occurring within that of the other;
the relative significance and foreseeability of the effects of the anticompetitive activities on one Party's important interests as compared to the effects on the other Party's important interests;
the presence or absence of a purpose on the part of those engaged in the anticompetitive activities to affect consumers, suppliers or competitors within the enforcing Party's territory;
the degree of conflict or consistency between the first Party's enforcement activities (including remedies) and the other Party's laws or other important interests;
whether private persons, either natural or legal, will be placed under conflicting requirements by both Parties;
the existence or absence of reasonable expectations that would be furthered or defeated by the enforcement activities;
the location of relevant assets;
the degree to which a remedy, in order to be effective, must be carried out within the other Party's territory; and
the extent to which enforcement activities of the other Party with respect to the same persons, including judgments or conditioned approvals resulting from such activities, would be affected.

Article VII
TECHNICAL COOPERATION

The Parties agree that it is in their common interest for their competition authorities to work together in technical cooperation activities related to competition law enforcement and policy. These activities may include, within their competition agencies' reasonably available resources and to the extent authorized by their respective laws: exchanges of information pursuant to Article III of this Agreement; exchanges of competition agency personnel for training purposes at each other's competition agencies; participation of competition agency personnel as lecturers or consultants at training courses on competition law and policy organized or sponsored by each other's competition authorities; and such other forms of technical cooperation as the Parties' competition authorities agree are appropriate for purposes of this Agreement.

Article VIII
CONSULTATIONS

1. Either Party may request consultations regarding any matter relating to this Agreement. The request for consultations shall indicate the reasons for the request and whether any procedural time limits or other constraints require that consultations be expedited. Each Party shall consult promptly when so requested with the view to reaching a conclusion that is consistent with the principles set forth in this Agreement.

2. Consultations under this Article shall take place at the appropriate level as determined by each Party.

3. During consultations under this Article, each Party shall provide to the other as much information as it is able in order to facilitate the broadest possible discussion regarding the relevant aspects of the matter that is the subject of consultations. Each Party shall carefully consider the representations of the other Party in light of the principles set out in this Agreement and shall be prepared to explain the specific results of its application of those principles to the matter that is the subject of consultations.

Article IX
PERIODIC MEETINGS

Officials of the Parties' competition authorities shall meet periodically to:
exchange information on their current enforcement efforts and priorities in relation to their competition laws;
exchange information on economic sectors of common interest;
discuss policy changes that they are considering; and
discuss other matters of mutual interest relating to the application of their competition laws and the operation of this Agreement.

Article X
CONFIDENTIALITY OF INFORMATION

1. Notwithstanding any other provision of this Agreement, neither Party is required to communicate information to the other Party if such communication is prohibited by the laws of the Party possessing the information or would be incompatible with that Party's important interests.

2. Unless otherwise agreed by the Parties, each Party shall, to the fullest extent possible consistent with that Party's laws, (i) maintain the confidentiality of any information communicated to it in confidence by the other Party under this Agreement, and (ii) oppose any application by a third party for disclosure of such confidential information.

Article XI
EXISTING LAWS

Nothing in this Agreement shall require a Party to take any action, or to refrain from acting, in a manner that is inconsistent with its existing laws, or require any change in the laws of the Parties or of their respective States.

Article XII
COMMUNICATIONS UNDER THIS AGREEMENT

Communications under this Agreement may be carried out directly between the competition authorities of the Parties. Requests under Articles V(2) and VIII(1) shall, however, be confirmed in writing through customary diplomatic channels.

Article XIII
ENTRY INTO FORCE AND TERMINATION

1. This Agreement shall enter into force upon signature.

2. This Agreement shall remain in force until 60 days after the date on which either Party notifies the other Party in writing that it wishes to terminate the Agreement.
IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective Governments, have signed this Agreement.
DONE at Mexico City, in duplicate, this eleventh day of July, 2000, in the English and Spanish languages, each text being equally authentic.

AGREEMENT BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA
 THE GOVERNMENT OF THE FEDERATIVE REPUBLIC OF BRAZIL

Regarding Cooperation Between Their Competition Authorities In the Enforcement of Their Competition Laws

The Government of the United States of America and the Government of the Federative Republic of Brazil (hereinafter referred to as "parties"),
Desiring to enhance the effective enforcement of their competition laws through cooperation between their competition authorities;
Having regard to their close economic relations and noting that the sound and effective enforcement of their competition laws is a matter of crucial importance to the efficient operation of markets and to the economic welfare of the citizens of their respective countries;
Recognizing that cooperation and coordination in competition law enforcement activities may result in a more effective resolution of the Parties' respective concerns than would be attained through independent action;
Further recognizing that technical cooperation between the Parties' competition authorities will contribute to improving and strengthening their relationship; and
Noting the Parties' commitment to give careful consideration to each other's important interests in the application of their competition laws,
Have agreed as follows:

ARTICLE I
PURPOSE AND DEFINITIONS

The purpose of this Agreement is to promote cooperation, including both enforcement and technical cooperation, between the competition authorities of the Parties, and to ensure that the Parties give careful consideration to each other's important interests in the application of their competition laws.
For the purposes of this Agreement, the following terms shall have the following definitions:
"anticompetitive practice(s)" means any conduct or transaction that may be subject to penalties or other relief under the competition laws of a Party;
"competition authority(ies)" means
for Brazil, the Administrative Council for Economic Defense (CADE) and the Secretariat for Economic Law Enforcement (SDE) in the Ministry of Justice; the Secretariat for Economic Monitoring (SEAE) in the Ministry of Finance;
for the United States of America, the United States Department of Justice and the Federal Trade Commission;
"competition law(s)" means
for Brazil, Federal Laws 8884/94 and 9021/95; and Provisional Measure 1.567/97;
for the United States of America, the Sherman Act (15 U.S.C. §§ 1-7), the Clayton Act (15 U.S.C.§§ 12-27), the Wilson Tariff Act (15 U.S.C. §§ 8-11), and the Federal Trade Commission Act (15 U.S.C. §§ 41-58), to the extent that it applies to unfair methods of competition, as well as any amendments thereto;
"enforcement activity(ies)" means any investigation or proceeding conducted by a Party in relation to its competition laws;
Each Party shall promptly notify the other of any amendments to its competition laws and of such other new laws or regulations that the Party considers to be part of its competition legislation.

ARTICLE II
NOTIFICATION

Each Party shall, subject to Article IX, notify the other party in the manner provided by this Article and Article XI with respect to enforcement activities specified in this Article. Notifications shall identify the nature of the practices under investigation and the legal provisions concerned, and shall ordinarily be given as promptly as possible after a Party's competition authorities become aware that notifiable circumstances are present.
Enforcement activities to be notified pursuant to this Article are those that:
to enforcement activities of the other Party;
involve anticompetitive practices, other than mergers or acquisitions, carried out in whole or in substantial part in the territory of the other Party;
involve mergers or acquisitions in which one or more of the parties to the transaction, or a company controlling one or more of the parties to a transaction, is a company incorporated or organized under the laws of the other Party or of one of its states;
involve conduct believed to have been required, encouraged, or approved by the other Party;
involve remedies that expressly require or prohibit conduct in the territory of the other Party or are otherwise directed at conduct in the territory of the other Party; or
involve the seeking of information located in the territory of the other Party.
The Parties acknowledge that officials of either Party may visit the territory of the other Party in the course of conducting investigations pursuant to their respective competition laws. Such visits shall be subject to notification pursuant to this Article and the consent of the notified Party.

ARTICLE III
ENFORCEMENT COOPERATION

The Parties agree that it is in their common interest to cooperate in the detection of anticompetitive practices and the enforcement of their competition laws, and to share information that will facilitate the effective application of those laws and promote better understanding of each other's competition enforcement policies and activities, to the extent compatible with their respective laws and important interests, and within their reasonably available resources.
Nothing in this Agreement shall prevent the Parties from seeking or providing assistance to one another pursuant to other agreements, treaties, arrangements or practices between them.

ARTICLE IV
COOPERATION REGARDING ANTICOMPETITIVE PRACTICES IN THE TERRITORY OF ONE
PARTY THAT MAY ADVERSELY AFFECT THE INTERESTS OF THE OTHER PARTY

The Parties agree that it is in their common interest to secure the efficient operation of their markets by enforcing their respective competition laws in order to protect their markets from anticompetitive practices. The Parties further agree that it is in their common interest to seek relief against anticompetitive practices that may occur in the territory of one Party that, in addition to violating that Party's competition laws, adversely affect the interest of the other Party in securing the efficient operation of the other Party's markets. If a Party believes that anticompetitive practices carried out in the territory of the other Party adversely affect its important interests, the first Party may, after prior consultation with the other Party, request that the other Party's competition authorities initiate appropriate enforcement activities. The request shall be as specific as possible about the nature of the anticompetitive practices and their effects on the important interests of the requesting Party, and shall include an offer of such further information and other cooperation as the requesting Party's competition authorities are able to provide.
The requested Party's competition authorities shall carefully consider whether to initiate or to expand enforcement activities with respect to the anticompetitive practices identified in the request, and shall promptly inform the requesting Party of its decision. If enforcement activities are initiated or expanded, the requested Party's competition authorities shall advise the requesting Party of their outcome and, to the extent possible, of significant interim developments.
Nothing in this Article limits the discretion of the requested Party's competition authorities under its competition laws and enforcement policies as to whether to undertake enforcement activities with respect to the anticompetitive practices identified in a request, nor precludes the requesting Party's competition authorities from undertaking enforcement activities with respect to such anticompetitive practices.

ARTICLE V
COORDINATION WITH REGARD TO RELATED MATTERS

Where both Parties' competition authorities are pursuing enforcement activities with regard to related matters, they will consider coordination of their enforcement activities.
In any coordination arrangement, each Party's competition authorities will seek to conduct their enforcement activities consistently with the enforcement objectives of the other Party's competition authorities.

ARTICLE VI
AVOIDANCE OF CONFLICTS; CONSULTATIONS

Each Party shall, within the framework of its own laws and to the extent compatible with its important interests, give careful consideration to the other Party's important interests throughout all phases of its enforcement activities, including decisions regarding the initiation of an investigation or proceeding, the scope of an investigation or proceeding, and the nature of the remedies or penalties sought in each case.
Either Party may request consultations regarding any matter relating to this Agreement. The request for consultations shall indicate the reasons for the request and whether any procedural time limits or other constraints require that consultations be expedited. Each Party shall consult promptly when so requested with a view to reaching a conclusion that is consistent with the purpose of this Agreement.

ARTICLE VII
TECHNICAL COOPERATION ACTIVITIES

The Parties agree that it is in their common interest for their competition authorities to work together in technical cooperation activities related to competition law enforcement and policy. These activities will include, within their competition agencies' reasonably available resources: exchanges of information pursuant to Article III of this Agreement; exchanges of competition agency personnel for training purposes at each other's competition agencies; participation of competition agency personnel as lecturers or consultants at training courses on competition law and policy organized or sponsored by each other's competition authorities; and such other forms of technical cooperation as the Parties' competition authorities agree are appropriate for purposes of this Agreement.

ARTICLE VIII
MEETINGS OF COMPETITION AUTHORITIES

Officials of the Parties' competition authorities shall meet periodically to exchange information on their current enforcement efforts and priorities in relation to their competition laws.

ARTICLE IX
CONFIDENTIALITY

Notwithstanding any other provision of this Agreement, neither Party is required to communicate information to the other Party if such communication is prohibited by the laws of the Party possessing the information or would be incompatible with that Party's important interests.
Unless otherwise agreed by the Parties, each Party shall, to the fullest extent possible, maintain the confidentiality of any information communicated to it in confidence by the other Party under this Agreement. Each Party shall oppose, to the fullest extent possible consistent with that Party's laws, any application by a third party for disclosure of such confidential information.

ARTICLE X
EXISTING LAWS

Nothing in this Agreement shall require a Party to take any action, or to refrain from acting, in a manner that is inconsistent with its existing laws, or require any change in the laws of the Parties or of their respective states.

ARTICLE XI
COMMUNICATIONS UNDER THIS AGREEMENT

Communications under this Agreement may be carried out by direct communication between the competition authorities of the Parties. Notifications under Article II and requests under Articles IV.2 and VI.2 shall, however, be confirmed promptly in writing through customary diplomatic channels and shall refer to the initial communication between the competition authorities and repeat the information supplied therein.

ARTICLE XII
ENTRY INTO FORCE AND TERMINATION

This Agreement shall enter into force on the date on which the Parties exchange diplomatic notes informing each other that they have completed all applicable requirements for its entry into force.
This Agreement may be amended by the mutual agreement of the Parties. An amendment shall enter into force in the manner set forth in paragraph 1 for entry into force of this Agreement.
This Agreement shall remain in force for an indefinite period of time, unless one Party notifies the other Party in writing that it wishes to terminate the Agreement. In that case, the Agreement shall terminate 60 days after such written notice is given.
IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective Governments, have signed this Agreement.
DONE at Washington, DC, this 26th day of October, 1999, in the English and Portuguese languages, each text being equally authentic.

CANADA-CHILE FREE TRADE AGREEMENT⁵
CHAPTER J
COMPETITION POLICY, MONOPOLIES AND STATE ENTERPRISES

Article J-01: Competition Law⁶

1. Each Party shall adopt or maintain measures to proscribe anti-competitive business conduct and take appropriate action with respect thereto, recognizing that such measures will enhance the fulfillment of the objectives of this Agreement. To this end the Parties shall consult from time to time about the effectiveness of measures undertaken by each Party.
    
2. Each Party recognizes the importance of cooperation and coordination among their authorities to further effective competition law enforcement in the free trade area. The Parties shall cooperate on issues of competition law enforcement policy, including mutual legal assistance, notification, consultation and exchange of information relating to the enforcement of competition laws and policies in the free trade area.
    
3. Neither Party may have recourse to dispute settlement under this Agreement for any matter arising under this Article.

Article J-02: Monopolies and State Enterprises⁷

1. Nothing in this Agreement shall be construed to prevent a Party from designating a monopoly.
    
2. Where a Party intends to designate a monopoly and the designation may affect the interests of persons of the other Party, the Party shall:

1. wherever possible, provide prior written notification to the other Party of the designation; and
    
2. endeavor to introduce at the time of the designation such conditions on the operation of the monopoly as will minimize or eliminate any nullification or impairment of benefits in the sense of Annex N-04 (Nullification and Impairment).

1. Each Party shall ensure, through regulatory control, administrative supervision or the application of other measures, that any privately-owned monopoly that it designates and any government monopoly that it maintains or designates:

1. acts in a manner that is not inconsistent with the Party's obligations under this Agreement wherever such a monopoly exercises any regulatory, administrative or other governmental authority that the Party has delegated to it in connection with the monopoly good or service, such as the power to grant import or export licences, approve commercial transactions or impose quotas, fees or other charges⁸;
2. except to comply with any terms of its designation that are not inconsistent with subparagraph (c) or (d), acts solely in accordance with commercial considerations in its purchase or sale of the monopoly good or service in the relevant market, including with regard to price, quality, availability, marketability, transportation and other terms and conditions of purchase or sale⁹;
3. provides non-discriminatory treatment to investments of investors, to goods and to service providers of the other Party in its purchase or sale of the monopoly good or service in the relevant market; and
4. does not use its monopoly position to engage, either directly or indirectly, including through its dealings with its parent, its subsidiary or other enterprise with common ownership, in anticompetitive practices in a non-monopolized market in its territory that adversely affect an investment of an investor of the other Party, including through the discriminatory provision of the monopoly good or service, cross-subsidization or predatory conduct.

1. Paragraph 3 does not apply to procurement by governmental agencies of goods or services for governmental purposes and not with a view to commercial resale or with a view to use in the production of goods or the provision of services for commercial sale.
    
2. For purposes of this Article; means designate prior to the date of entry into force of this Agreement and existing on that date.

Article J-03: State Enterprises

1. Nothing in this Agreement shall be construed to prevent a Party from maintaining or establishing a state enterprise.
    
2. Each Party shall ensure, through regulatory control, administrative supervision or the application of other measures, that any state enterprise that it maintains or establishes acts in a manner that is not inconsistent with the Party's obligations under Chapter G (Investment) wherever such enterprise exercises any regulatory, administrative or other governmental authority that the Party has delegated to it, such as the power to expropriate, grant licences, approve commercial transactions or impose quotas, fees or other charges.
    
3. Each Party shall ensure that any state enterprise that it maintains or establishes accords non-discriminatory treatment in the sale of its goods or services to investments in the Party's territory of investors of the other Party.

Article J-04: Definitions

For purposes of this Chapter:

designate means to establish, designate or authorize, or to expand the scope of a monopoly to cover an additional good or service, after the date of entry into force of this Agreement;

discriminatory provision includes treating:

1. a parent, a subsidiary or other enterprise with common ownership more favourably than an unaffiliated enterprise, or
2. one class of enterprises more favourably than another, in like circumstances;

government monopoly means a monopoly that is owned, or controlled through ownership interests, by the national government of a Party or by another such monopoly;

in accordance with commercial considerations means consistent with normal business practices of privately-held enterprises in the relevant business or industry;

market means the geographic and commercial market for a good or service;

monopoly means an entity, including a consortium or government agency, that in any relevant market in the territory of a Party is designated as the sole provider or purchaser of a good or service, but does not include an entity that has been granted an exclusive intellectual property right solely by reason of such grant;

non-discriminatory treatment means the better of national treatment and most-favoured-nation treatment, as set out in the relevant provisions of this Agreement; and

state enterprise means, except as set out in Annex J-04, an enterprise owned, or controlled through ownership interests, by a Party.

Annex J-04: Country-Specific Definition of State Enterprises
For purposes of Article J-03(3), with respect to Canada,; means a Crown corporation within the meaning of the Financial Administration Act (Canada), a Crown corporation within the meaning of any comparable provincial law or equivalent entity that is incorporated under other applicable provincial law.

FREE TRADE AGREEMENT BETWEEN
THE GOVERNMENT OF CHILE AND
THE GOVERNMENT OF MEXICO

PART FOUR – INVESTMENT, SERVICES AND RELATED MATTERS

CHAPTER 14
POLICY ON COMPETITION, STATE ENTERPRISES AND MONOPOLIES

Article 14-01:
Definitions
For purposes of this chapter, the following definitions shall apply:

commercial considerations: consistent with normal business practices carried out by private enterprises within that industry;

authorize: establish, designate, authorize or expand the scope of the monopoly to include an additional good or service, subsequent to the date of the entry into force of this Agreement;

State enterprise: "State enterprise," as defined in Article 2-01 (Definitions of General Application), except as provided in Annex 14-01;

market: the geographic and commercial market for a good or service;

monopoly: any entity, including a consortium or government agency which, in any relevant market in the territory of any Party, has been authorized as sole supplier or purchaser of a good or service, but excluding any entity to which an exclusive intellectual property right has been granted, where such right derives exclusively therefrom;

government monopoly: a monopoly owned or controlled, through ownership interests, by the government of any Party or by another such monopoly;

discriminatory provision includes:

treating a parent, a subsidiary or other enterprise with common ownership more favorably than an unaffiliated enterprise; or
more favorable treatment for one type of enterprise than for another, under similar circumstances; and

nondiscriminatory treatment: the best treatment among national treatment and most favored nation treatment, as indicated in the relevant provisions of this Agreement.

Article 14-02:
Legislation on Competition

Each Party shall adopt or maintain measures prohibiting anticompetitive business practices, and shall undertake appropriate actions in this regard, recognizing that these measures will contribute to achieving the objectives of this Agreement. To this end, the Parties shall periodically hold consultations on the effectiveness of the measures adopted by each Party.

Each Party recognizes the importance of cooperation and coordination between the respective authorities in promoting the effective application of legislation on competition in the free trade area. The Parties shall also cooperate on matters related to enforcing legislation regarding competition, including mutual legal assistance, communication, consultation, and exchange of information related to the application of laws and policies in matters of competition in the free trade area.

No Party may resort to the dispute resolution procedures of this Agreement with regard to any matter arising pursuant to this article.

No investor of any Party may submit a dispute pursuant to Section C (Settlement of Disputes Between a Party and an Investor of Another Party) of Chapter 9 (Investment) on any matter arising pursuant to this article.

Article 14-03:
State Enterprises and Monopolies

For purposes of this article, the following definitions shall apply:

delegation: includes any legislative concession, as well as any order, instruction or other act of State that transfers governmental powers to the monopoly or authorizes it to exercise such powers; and

maintain: established prior to the entry into force of this Agreement and in existence as of that date.

No provision of this Agreement shall be construed to prevent any Party from authorizing a monopoly.

Where any Party seeks to authorize a monopoly, and such authorization could affect the interests of persons of another Party: provided it is possible, it shall provide prior written notification of the authorization to the other Party; and at the time of the authorization, it shall seek to incorporate in the monopoly’s operation conditions that minimize or eliminate any annulment or impairment of benefits, in the sense of Annex 18-02 (Annulment and Impairment).

Each Party shall, through regulatory control, administrative supervision, or the application of other measures, ensure that any privately owned monopoly that the Party may authorize, or any governmental monopoly that it may maintain or authorize:

act in a manner consistent with the obligations of the Party under this Agreement, where that monopoly has regulatory, administrative or other governmental powers delegated to it by the Party as regards the monopolized good or service, such as the power to grant import or export permits, approve business operations or impose fees, duties or other charges;

act exclusively according to commercial considerations in the purchase or sale of the monopolized good or service in the relevant market, including as regards price, quality, availability, salability, transport and other terms and conditions for its purchase and sale, except where this involves compliance with any of the terms of its authorization that are not inconsistent with items (c) or (d). The difference in the setting prices between different types of clients, between affiliated and non-affiliated enterprises, and the granting of cross subsidies, are not in themselves inconsistent with this provision, and these behaviors are subject to this subsection when they are undertaken in ways contrary to competition laws;

accord nondiscriminatory treatment to the investment of investors, to goods, and to service providers of another Party in purchasing or selling the monopolized good or service in the relevant market, and not use its monopoly position to carry out anticompetitive practices, in a non-monopolized market in its territory, that have a negative effect on the investment of an investor of another Party, directly or indirectly, including through the operations of its parent, subsidiary or other enterprise with common ownership, including the discriminatory provision of a monopolized good or service, the granting of cross subsidies or predatory behavior.

Paragraph 4 does not apply to the procurement of goods or services by government agencies for official purposes and without purposes of commercial resale or for use in the production of goods or the provision of services for commercial sale.

Nothing in the provisions of this article shall be construed to prevent a monopoly from setting different prices in different geographic markets, where those differences are based on normal commercial considerations such as taking into account conditions of supply and demand in those markets.

Article 14-04:
State Enterprises

Nothing in the provisions of this Agreement shall be construed to prevent any Party from maintaining or establishing State enterprises.

Each Party shall, through regulatory control, administrative supervision or the application of other measures, ensure that any State enterprise it maintains or establishes act in a manner consistent with the obligations of the Party under Chapter 9 (Investment), where such enterprise has regulatory, administrative or other governmental functions delegated to it by the Party, such as the power to expropriate, grant licenses, approve business operations or impose fees, duties or other charges.

Each Party shall ensure that any State enterprise that it maintains or establishes accord nondiscriminatory treatment to the investments of investors of the other Party in its territory, as regards the sale of its goods and services.

Article 14-05:
Committee on Trade and Competition

The Commission shall establish a Committee on Trade and Competition, comprised of representatives of each Party, which shall meet at least once a year. The Committee shall report and make appropriate recommendations to the Commission regarding matters related to the relation between competition laws and policy and trade in the free trade area.

Annex 14-01
Specific Definitions on State Enterprises

For purposes of Article 14-04(3), in regard to Mexico, State enterprise does not include the Compañía Nacional de Subsistencias Populares and its affiliates, or any successor enterprise or its affiliates, for the purpose of selling corn, beans and powdered milk.

FREE TRADE AGREEMENT BETWEEN THE GOVERNMENTS OF CENTRAL AMERICA (COSTA RICA, EL SALVADOR, GUATEMALA, HONDURAS AND NICARAGUA) AND THE GOVERNMENT OF
 CHILE

CHAPTER 15

COMPETITION POLICY

Article 15.01 Cooperation

1. The Parties shall seek to ensure that the benefits of this Agreement are not impaired by anticompetitive business practice, and shall seek to move toward adopting common provisions to prevent such practices.

2. The Parties shall also attempt to establish mechanisms that facilitate and promote the development of competition policies that ensure the application of rules on free competition between and among the Parties, in order to prevent negative effects from anticompetitive business practices in the free trade area.

Article 15.02 State Enterprises and Monopolies

1. For purposes of this article, the following definitions shall apply:

Monopoly: any entity, including a consortium or government agency which, in any relevant market in the territory of any Party, has been authorized pursuant to its legislation, if it so permits, as sole supplier or purchaser of a good or service, but excluding any entity to which an exclusive intellectual property right has been granted, where such right derives exclusively therefrom; and

Nondiscriminatory treatment: the better between national treatment and most favored nation treatment, as indicated in the relevant provisions of this Agreement.

2. No provision of this Agreement shall be construed to impede a Party from maintaining or establishing State enterprises or monopolies, provided its legislation so permits.

3. Each Party shall adapt to the provisions of this Agreement, in order that any State enterprise or monopoly that is established or maintained act in a manner consistent with the obligations of a Party under this Agreement and accord nondiscriminatory treatment to the investment of investors, to goods, and to service providers of another Party.

4. This article shall not apply to the procurement of goods or services by government agencies made for official purposes and without the purpose of commercial resale or for use in the production of goods or the provision of services for commercial sale.

FREE TRADE AGREEMENT
CENTRAL AMERICA – DOMINICAN REPUBLIC

CHAPTER XV

COMPETITION POLICY

Article 15.01:
Application

1. The Parties shall seek to ensure that the benefits of this Agreement are not impaired by anticompetitive business practices, and shall endeavor to move toward adopting common provisions to prevent such practices.
    
2. The Parties shall also attempt to establish mechanisms that facilitate and promote the development of competition policies ensuring the application of rules on free competition between and among the Parties, in order to prevent negative effects from anticompetitive business practices in the area of free trade.

Article 15.02:

Committee on Trade and Free Competition

The Committee on Trade and Free Competition is hereby created, comprised of two members of each of the Parties. The primary function of the Committee shall be to find the most appropriate means of applying the provisions of paragraphs 1 and 2, in addition to carrying out any other task assigned to it by the Council.

FREE TRADE AGREEMENT
CENTRAL AMERICAN COMMON MARKET ( CACM) – PANAMA

CHAPTER IV

PROBLEMS RELATED TO COMPETITION

Article 15: When, subject to confirmation by the country affected, a State Party encounters serious problems of competition for a particular company or branch of industry, because of measures that place it at a competitive disadvantage, the affected party shall submit the matter for review to the Permanent Joint Committee, which may agree to the adoption or modification of quantitative measures applied to the product or products at issue that are included on the list of traded goods, or may agree to exclude them from the list.
Such agreements shall enter into force on the date determined by the Committee.
To decide on the adoption of measures referred to in this article, and at the request of one of the Contracting Parties, the Joint Committee shall meet within a period of no more than 30 calendar days reckoned from the date of receipt of the request.
If the Committee does not meet within that period, the interested Party may consider that it has not been possible to reach an agreement and may take such unilateral transitional measures as may be necessary to normalize trade in the products concerned until such time as the Joint Committee adopts measures on the matter.
If the Joint Committee meets and does not reach an agreement, the Party concerned may take such transitional measures as the suspension of free trade in the product concerned or the establishment of a quota or other restrictions, until such time as the Joint Committee takes the appropriate measures. In the case of suspension of free trade, the measure adopted shall enter into force one year after its adoption.
In the case of quotas or other restrictions, these would enter into force within 60 calendar days reckoned from the date of adoption of the measure in question. In no case shall the adoption of such measures have the effect of nullifying the trade that is taking place between the Parties.

Article 16: Considering that unfair trade is contrary to the aims pursued through signature of the Treaty, each of the Contracting Parties shall take available legal measures to prevent the export of goods at prices below normal value, and thus avoid the creation of production and trade distortions in the importing country.
When one of the Contracting Parties considers that there is evidence of unfair trade, it shall submit the case to the Permanent Joint Committee for consideration and--within five working days of receipt of the request--the issuance of an opinion on the matter or authorization of temporary suspension of the treatment accorded. Pending such ruling, importation shall be permitted only subject to the deposit of a bond in the amount of the duties specified in the general schedule of customs duties of the country concerned. Such suspension shall be authorized for a maximum period of 30 days, within which time the Committee shall issue its definitive ruling. In the absence of such ruling by the Committee within the aforementioned five days, the State concerned may in any case require the deposit of the bond.
In the event that the Joint Committee confirms the existence of unfair trade, the Party affected may redeem the bond and, in addition, charge custom duties retroactively for a period of one month reckoned from the date on which the complaint was submitted.
If the Joint Committee confirms the existence of unfair trade, payment of the duties established in the aforementioned schedule of customs duties shall be claimed.

Article 17: For the purposes of articles 15 and 16 of these Regulations, when a company encounters problems of unfair competition or trade it shall present a written study to the Administrative Authority of the State Party of which it is a national, stating the problem. The aforementioned authority shall verify the evidence in the case and, if it confirms the existence of the problem, the aforementioned State Party shall submit the matter to the Joint Committee, which shall resolve it in accordance with the applicable provisions of the Treaty.
Upon submission of the matter to the Joint Committee, the Party affected shall transmit a written study to the other State Party on the problem concerned.
Article 18: In the event that one of the Parties should modify its existing currency exchange regime, it shall formally notify the other Party accordingly, in writing, in the most expeditious possible manner.
If one of the Parties considers that a company or branch of industry is being affected by the adoption of such measures, it shall submit the problem to the Permanent Joint Committee for review and the adoption of appropriate measures to correct the situation. The Committee shall meet within a period of no more than 20 calendar days reckoned from the date of receipt of the request. In the absence of such a meeting, or of agreement on appropriate corrective measures, the affected Party may take such transitional measures as may have the effect of normalizing the trade affected by the aforementioned currency exchange measures, until such time as the Joint Committee adopts a final decision to correct the situation.
The measures adopted by the Committee may be transitional in character and shall in no case go beyond those necessary to re-establish the relative competitive positions, or the overall trade balance, existing prior to the adoption of the currency exchange measures in question.

ECONOMIC COMPLEMENTATION AGREEMENT BETWEEN
THE GOVERNMENT OF BOLIVIA AND THE GOVERNMENT OF CHILE
ECONOMIC COMPLEMENTATION AGREEMENT NO 22

CHAPTER V

UNFAIR TRADE PRACTICES AND COMPETITIVE CONDITIONS

Article 10.

The signatory countries condemn dumping and all unfair trade practices, as well as the granting of export subsidies and other domestic subsidies of equivalent effect.

Article 11.

Should situations involving dumping or distortions in competition resulting from the application of export subsidies and other subsidies of equivalent effect occur in reciprocal trade, regarding products protected under the benefits of the Liberalization Program of this Agreement, as well as products that are not so protected, the affected signatory country shall apply the corrective measures set forth in its domestic legislation. Signatory countries undertake to follow the criteria and procedures set forth in the context of the General Agreement on Tariffs and Trade (GATT) on the date of the signing of this Agreement.

UNITED MEXICAN STATES - EUROPEAN COMMUNITY
TITLE IV
COMPETITION

Article 39 - Mechanism of co-operation

1. A mechanism of co-operation between the authorities of the Parties with responsibility for implementation of competition rules is established in Annex XV.
2. The competition authorities of both Parties shall present to the Joint Committee an annual report on the implementation of the mechanism referred to in the first paragraph.

ANNEX XV - (REFERRED TO IN ARTICLE 39)
CHAPTER I
GENERAL PROVISIONS

Article 1 - Objectives

1. The Parties undertake to apply their respective competition laws so as to avoid that the benefits of this Decision may be diminished or cancelled out by anti-competitive activities.
    
2. The objectives of this mechanism are:

1. to promote co-operation and co-ordination between the Parties regarding the application of their competition laws in their respective territories and to provide mutual assistance in any fields of competition they consider necessary;
2. to eliminate anticompetitive activities by applying the appropriate legislation, in order to avoid adverse effects on trade and economic development , as well as the possible negative impact that such activities may have on the other Party's interests;
3. to promote co-operation in order to clarify any differences in the application of their respective competition laws.

1. The Parties shall give the following aspects particular attention in implementing the present mechanism, with a view to preventing distortions or restrictions on competition which may affect trade conducted between the Community and Mexico:

1. for the Community: the agreements between companies, decisions to form an association between companies and concerted practices between companies, the abuse of a dominant position and mergers.
2. for Mexico the absolute or relative monopolistic practices and mergers.

Article 2. - Definitions
For the purpose of this Annex:

1. "competition laws"; include:

1. for the Community, Articles 81, 82, 85 and 86 of the Treaty establishing the European Community, Council Regulation (EEC) No 4064/89 on the control of concentrations between undertakings, Articles 65 and 66 of the Treaty establishing the European Coal and Steel Community (ECSC), and their implementing Regulations, including High Authority Decision No 24/54;
2. for Mexico, the Ley Federal de Competencia of December 24, 1992, Reglamento Interior de la Comisión Federal de Competencia of August 28, 1998 and the Reglamento de la Ley Federal de Competencia of March 4, 1998; and
3. any amendments that the above mentioned legislation may undergo; and
4. it may also include additional legislation to the extent it may have implications to competition in terms of this mechanism;

1. "competition authority" means:

1. for the Community, the Commission of the European Communities, and
2. for Mexico, Comisión Federal de Competencia ;

1. "enforcement activities" means any application of competition law by way of investigation or proceeding conducted by the competition authorities of a Party, which may result in penalties or remedies.
2. "anticompetitive activities" and "conduct and practices which restrict competition" mean any conduct, transaction or act as defined under the competition laws of a Party, which is subject to penalties or remedies.

CHAPTER II
CO-OPERATION AND CO-ORDINATION

Article 3 - Notification

1. Each competition authority shall notify the competition authority of the other Party an enforcement activity if:

1. it is relevant to enforcement activities of the other Party;
2. it may affect the other Party's important interests;
3. it relates to restrictions on competition which may affect the territory of the other Party; and
4. decisions may be adopted conditioning or prohibiting action in the territory of the other Party.

1. To the extent possible, and provided that this is not contrary to the Parties' competition laws and does not adversely affect any investigation being carried out, notification shall take place during the initial phase of the procedure, to enable the notified competition authority to express its opinion. The opinions received may be taken into consideration by the other competition authority when taking decisions.
2. The notifications provided for in paragraph 1 shall be detailed enough to permit an evaluation in the light of the interests of the other Party. Notifications shall include inter alia the following information:

1. a description of the restrictive effects of the transaction on competition and the applicable legal basis;
2. the relevant market for the product or service and its geographical scope, the characteristics of the economic sector concerned and data on the economic agents involved in the transaction; and
3. the estimated deadlines for resolution, in cases in which the procedure has been initiated, and to the extent possible an indication of its probable out-come, and of the measures which may be taken or provided for.

1. Each competition authority shall notify the competition authority of the other Party as soon as possible of the existence of measures, other than enforcement activities, which could affect that other Party important interests, bearing in mind the provision laid down in paragraph 1. In particular they shall do so in the following cases:

1. administrative or judicial proceedings; and
2. measures taken by other governmental agencies, including current or future regulatory bodies, which may have an impact to enhance competition in specific-regulated sectors.

Article 4 - Exchange of information

1. With a view to facilitating the effective application of their respective competition laws and promoting a better understanding of their respective legal frameworks, the competition authorities shall exchange the following types of information:

1. to the extent practicable, texts on legal theory, case-law or market studies in the public domain, or in the absence of such documents, non-confidential data or summaries;
2. information related to the application of competition legislation provided that it does not adversely affect the person providing such information, and for the sole purpose of helping to resolve the procedure; and
3. information concerning any known anticompetitive activities and any innovations introduced into the respective legal systems in order to improve the application of their respective competition laws.

1. The competition authorities shall help each other to collect other types of information in their respective territories, if circumstances so require.
    
2. Representatives of each Party’s competition authorities shall meet in order to promote knowledge on both sides of their respective competition laws and policies, and to evaluate the results of the co-operation mechanism. They may meet informally, as well as at institutional meetings in a multilateral context, when circumstances allow.

Article 5 - Co-ordination of enforcement activities

1. A competition Authority may notify its willingness to co-ordinate enforcement activities with respect to a specific case. This co-ordination shall not prevent the Parties from taking autonomous decisions.
    
2. In determining the extent of co-ordination , the Parties shall consider:

1. the effective results which co-ordination could produce;
2. the additional information to be obtained;
3. the reduction in costs for the competition authorities and the economic agents involved; and
4. the applicable deadlines under their respective legislation.

Article 6 - Consultations when important interests of one Party are adversely affected in the territory of the other Party.

1. A competition authority which considers that an investigation or proceeding being conducted by the compassion authority of the other Party may such Party’s important interests should transmit its views on the matter to, or request consultation with, the other competition authority. Without prejudice to the continuation of any action under its competition law and to its full freedom of ultimate decision, the competition authority so addressed should give full and sympathetic consideration to the views expressed by the requesting competition authority, and, in particular, to any suggestions as to alternative means of fulfilling the needs or objectives of the competition investigation or proceeding.
2. The competition authority of a Party which considers that the interests of that Party are being substantially and adversely affected by anticompetitive practices of whatever origin that are or have been engaged in by one or more enterprises situated in the other Party may request consultation with the other competition authority, recognising that entering into such consultations is without prejudice to any action under its competition law and to the full freedom of ultimate decision of the competition authority concerned. A competition authority so addressed should give full and sympathetic consideration to such views and factual materials as may be provided by the requesting competition authority and, in particular, to the nature of the anticompetitive practices in question, the enterprises involved and the alleged harmful effects on the interests of the requesting competition authority.

Article 7 - Avoidance of conflicts

1. Each Party shall, wherever possible, and in accordance with its own legislation, take into consideration the important interests of the other Party in the course of its enforcement activities.
2. If adverse effects for one Party result, even if the above considerations are respected, the competition authorities shall seek a mutually acceptable solution. In this context, the following may be considered:

1. the importance of the measure and the impact which it has on the interests of one Party, by comparing the benefits to be obtained by the other Party;
2. the presence or absence, in the actions of the economic agents concerned, of the intention to affect consumers, suppliers or competitors;
3. the degree of any inconsistencies between the legislation of one Party and the measures to be applied by the other Party;
4. whether the economic agents involved will be subject to incompatible requests by both Parties;
5. the initiation of the procedure or the imposition of penalties or remedies;
6. the location of the assets of the economic agents involved; and
7. the importance of the penalty to be imposed in the territory of the other Party.

Article 8 - Confidentiality

The exchange of information shall be subject to the standards of confidentiality applicable in each Party. Confidential information whose dissemination is expressly prohibited or which, if disseminated, could adversely affect the Parties, shall not be provided without the express consent of the source of the information. Each competition authority shall maintain the confidentiality of any information provided to it in confidence by the other competition authority under this mechanism, and oppose any application for disclosure of such information by a third party that is not authorised by the competition authority that supplied the information.

Article 9 - Technical Co-operation

1. The Parties shall provide each other technical assistance in order to take advantage of their respective experience and to strengthen the implementation of their competition laws and policies.
2. The co-operation shall include the following activities:

1. training of officials of both Parties’ competition authorities, to enable them to gain practical experience; and
2. seminars, in particular for civil servants.

1. The Parties may carry out joint studies of competition or competition laws and policies, with a view to supporting their development.
2. The Parties acknowledge that developments in communication and computer systems are relevant to the activities they wish to develop and that they should be used to promote communication and facilitate access to information on competition policies as far as possible. To this end they shall seek to:

1. extend their respective home pages so as to provide information on developments in their activities.
2. promote the dissemination of subjects relating to competition studies through publications such as the Boletín Latinoamericano de Competencia, the Competition Policy Newsletter of the Directorate General for Competition of the European Community, and the annual reports and the Gaceta de Competencia Económica published by the Comisión Federal de Competencia of Mexico.
3. c. develop an electronic archive of case-law pertaining to the cases investigated, which would enable the identification of individual cases, the nature of the practice or conduct analysed, its legal framework and the outcomes and dates of resolution.

Article 10 - Amendments
The Joint Committee may amend this Annex.

THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF AUSTRALIA ON MUTUAL
ANTITRUST ENFORCEMENT ASSISTANCE

The Government of the United States of America and the Government of Australia (individually a "Party" or collectively the "Parties"), desiring to improve the effectiveness of the enforcement of the antitrust laws of both countries through cooperation and mutual legal assistance on a reciprocal basis, hereby agree as follows:

ARTICLE I
DEFINITIONS

Antitrust Authority
refers, in the case of the United States, to the United States Department of Justice or the United States Federal Trade Commission. In the case of Australia, the term refers to the Australian Competition and Consumer Commission.
Antitrust Evidence
refers to information, testimony, statements, documents or copies thereof, or other things that are obtained, in anticipation of, or during the course of, an investigation or proceeding under the Parties' respective antitrust laws, or pursuant to the Parties' Mutual Assistance Legislation.
Antitrust Laws
refers, in the case of the United States, to the laws enumerated in subsection (a) of the first section of the Clayton Act, 15 U.S.C. 12(a), and to Section 5 of the Federal Trade Commission Act, 15 U.S.C. 45, to the extent that such Section 5 applies to unfair methods of competition. In the case of Australia, the term refers to Part IV of the Trade Practices Act 1974; other provisions of that Act except Part X in so far as they relate to Part IV; Regulations made under that Act in so far as they relate to Part IV, except Regulations to the extent that they relate to Part X; and the Competition Code of the Australian States and Territories.
Central Authority
refers, in the case of the United States, to the Attorney General (or a person designated by the Attorney General), in consultation with the U.S. Federal Trade Commission. In the case of Australia, the term refers to the Australian Competition and Consumer Commission, in consultation with the Attorney General's Department.
Executing Authority
refers, in the case of the United States, to the Antitrust Authority designated to execute a particular request on behalf of a Party. In the case of Australia, the term includes the Australian Competition and Consumer Commission and the Attorney General's Department.
Mutual Assistance Legislation
refers, in the case of the United States, to the International Antitrust Enforcement Assistance Act of 1994, 15 U.S.C. 6201-6212, Public Law No. 103-438, 108 Stat. 4597. In the case of Australia, the term refers to the Mutual Assistance in Business Regulation Act 1992 and the Mutual Assistance in Criminal Matters Act 1987, and Regulations made pursuant to those Acts.
Person or Persons
refers to any natural person or legal entity, including corporations, unincorporated associations, partnerships, or bodies corporate existing under or authorized by the laws of either the United States, its States, or its Territories, the laws of Australia, its States, or its Territories, or the laws of other sovereign states.
Request
refers to a request for assistance under this Agreement.
Requested Party
refers to the Party from which assistance is sought under this Agreement, or which has provided such assistance.
Requesting Party
refers to the Party seeking or receiving assistance under this Agreement.

ARTICLE II
OBJECT AND SCOPE OF ASSISTANCE

The Parties intend to assist one another and to cooperate on a reciprocal basis in providing or obtaining antitrust evidence that may assist in determining whether a person has violated, or is about to violate, their respective antitrust laws, or in facilitating the administration or enforcement of such antitrust laws.
Each Party's Antitrust Authorities shall, to the extent compatible with that Party's laws, enforcement policies, and other important interests, inform the other Party's Antitrust Authorities about activities that appear to be anticompetitive and that may be relevant to, or may warrant, enforcement activity by the other Party's Antitrust Authorities.
Each Party's Antitrust Authorities shall, to the extent compatible with that Party's laws, enforcement policies, and other important interests, inform the other Party's Antitrust Authorities about investigative or enforcement activities taken pursuant to assistance provided under this Agreement that may affect the important interests of the other Party.
Nothing in this Agreement shall require the Parties or their respective Antitrust Authorities to take any action inconsistent with their respective Mutual Assistance Legislation.
Assistance contemplated by this Agreement includes but is not limited to:
disclosing, providing, exchanging, or discussing antitrust evidence in the possession of an Antitrust Authority; obtaining antitrust evidence at the request of an Antitrust Authority of the other Party, including taking the testimony or statements of persons or otherwise obtaining information from persons, obtaining documents, records, or other forms of documentary evidence, locating or identifying persons or things, and executing searches and seizures, and disclosing, providing, exchanging, or discussing such evidence; and providing copies of publicly available records, including documents or information in any form, in the possession of government departments and agencies of the national government of the Requested Party.
Assistance may be provided whether or not the conduct underlying a request would constitute a violation of the antitrust laws of the Requested Party.
Nothing in this Agreement shall prevent a Party from seeking assistance from or providing assistance to the other pursuant to other agreements, treaties, arrangements, or practices, including the Agreement Between the Government of Australia and the Government of the United States of America Relating to Cooperation on Antitrust Matters of June 29, 1982, either in place of or in conjunction with assistance provided pursuant to this Agreement.
Except as provided by paragraphs C and D of Article VII, this Agreement shall be used solely for the purpose of mutual antitrust enforcement assistance between the Parties. The provisions of this Agreement shall not give rise to a right on the part of any private person to obtain, suppress, or exclude any evidence, or to impede the execution of a request made pursuant to this Agreement.
Nothing in this Agreement compels a person to provide antitrust evidence in violation of any legally applicable right or privilege.
Nothing in this Agreement affects the right of an Antitrust Authority of one Party to seek antitrust evidence on a voluntary basis from a person located in the territory of the other Party, nor does anything in this Agreement preclude any such person from voluntarily providing antitrust evidence to an Antitrust Authority.

ARTICLE III
REQUESTS FOR ASSISTANCE

Requests for assistance under this Agreement shall be made by an Antitrust Authority of the Requesting Party. Such requests shall be made in writing and directed to the Central Authority of the Requested Party. With respect to the United States, the Attorney General, acting as the Central Authority, will upon receipt forward a copy of each request to the Federal Trade Commission.
Requests shall include, without limitation:
A general description of the subject matter and nature of the investigation or proceeding to which the request relates, including identification of the persons subject to the investigation or proceeding and citations to the specific antitrust laws involved giving rise to the investigation or proceeding; such description shall include information sufficient to explain how the subject matter of the request concerns a possible violation of the antitrust laws in question;
The purpose for which the antitrust evidence, information, or other assistance is sought and its relevance to the investigation or proceeding to which the request relates. A request by the United States shall state either that the request is not made for the purpose of any criminal proceedings or that the request is made for a purpose that includes possible criminal proceedings. In the former case, the request shall contain a written assurance that antitrust evidence obtained pursuant to the request shall not be used for the purposes of criminal proceedings, unless such use is subsequently authorized pursuant to Article VII. In the latter case, the request shall indicate the relevant provisions of law under which criminal proceedings may be brought.
A description of the antitrust evidence, information, or other assistance sought, including, where applicable and to the extent necessary and possible:
the identity and location of any person from whom evidence is sought, and a description of that person's relationship to the investigation or proceeding which is the subject of the request;
a list of questions to be asked of a witness;
a description of documentary evidence requested; and
with respect to searches and seizures, a precise description of the place or person to be searched and of the antitrust evidence to be seized, and information justifying such search and seizure under the laws of the Requested Party;
Where applicable, a description of procedural or evidentiary requirements bearing on the manner in which the Requesting Party desires the request to be executed, which may include requirements relating to:
the manner in which any testimony or statement is to be taken or recorded, including the participation of counsel;
the administration of oaths;
any legal privileges that may be invoked under the law of the Requesting Party that the Requesting Party wishes the Executing Authority to respect in executing the request, together with an explanation of the desired method of taking the testimony or provision of evidence to which such privileges may apply; and
the authentication of public records;
The desired time period for a response to the request;
Requirements, if any, for confidential treatment of the request or its contents; and
A statement disclosing whether the Requesting Party holds any proprietary interest that could benefit or otherwise be affected by assistance provided in response to the request; and
Any other information that may facilitate review or execution of a request.
Requests shall be accompanied by written assurances of the relevant Antitrust Authority that there have been no significant modifications to the confidentiality laws and procedures described in Annex A hereto.
An Antitrust Authority may modify or supplement a request prior to its execution if the Requested Party agrees.

ARTICLE IV
LIMITATIONS ON ASSISTANCE

The Requested Party may deny assistance in whole or in part if that Party's Central Authority or Executing Authority, as appropriate, determine that:
a request is not made in accordance with the provisions of this Agreement;
execution of a request would exceed the Executing Authority's reasonably available resources;
execution of a request would not be authorized by the domestic law of the Requested Party;
execution of a request would be contrary to the public interest of the Requested Party.
Before denying a request, the Central Authority or the Executing Authority of the Requested Party, as appropriate, shall consult with the Central Authority of the Requesting Party and the Antitrust Authority that made the request to determine whether assistance may be given in whole or in part, subject to specified terms and conditions.
If a request is denied in whole or in part, the Central Authority or the Executing Authority of the Requested Party, as appropriate, shall promptly inform the Central Authority of the Requesting Party and the Antitrust Authority that made the request and provide an explanation of the basis for denial.

ARTICLE V
EXECUTION OF REQUESTS

After receiving a request, the Central Authority shall promptly provide the Requesting Party an initial response that includes, when applicable, an identification of the Executing Authority (Authorities) for the Request.
The Central Authority of the United States, the Attorney General of Australia, or, once designated, the Executing Authority of either Party may request additional information concerning the request or may determine that the request will be executed only subject to specified terms and conditions. Without limitation, such terms and conditions may relate to (1) the manner or timing of the execution of the request, or (2) the use or disclosure of any antitrust evidence provided. If the Requesting Party accepts assistance subject to such terms and conditions, it shall comply with them.
A request shall be executed in accordance with the laws of the Requested Party. The method of execution specified in the request shall be followed, unless it is prohibited by the law of the Requested Party or unless the Executing Authority otherwise concludes, after consultation with the Authority that made the request, that a different method of execution is appropriate.
The Executing Authority shall, to the extent permitted by the laws and other important interests of the Requested Party, facilitate the participation in the execution of a request of such officials of the Requesting Party as are specified in the request.

ARTICLE VI
CONFIDENTIALITY

Except as otherwise provided by this paragraph and Article VII, each Party shall, to the fullest extent possible consistent with that Party's laws, maintain the confidentiality of any request and of any information communicated to it in confidence by the other Party under this Agreement. In particular:
The Requesting Party may ask that assistance be provided in a manner that maintains the confidentiality of a request and/or its contents. If a request cannot be executed in that manner, the Requested Party shall so inform the Requesting Party, which shall then determine the extent to which it wishes the request to be executed; and
Antitrust evidence obtained pursuant to this Agreement shall be kept confidential by both the Requesting Party and the Requested Party, except as provided in paragraph E of this Article and Article VII.
Each Party shall oppose, to the fullest extent possible consistent with that Party's laws, any application by a third party for disclosure of such confidential information.
By entering into this Agreement, each Party confirms that:
The confidentiality of antitrust evidence obtained under this Agreement is ensured by its national laws and procedures pertaining to the confidential treatment of such evidence, and that such laws and procedures as are set forth in Annex A to this Agreement are sufficient to provide protection that is adequate to maintain securely the confidentiality of antitrust evidence provided under this Agreement; and
The Antitrust Authorities designated herein are themselves subject to the confidentiality restrictions imposed by such laws and procedures.
Unauthorized or illegal disclosure or use of information communicated in confidence to a Party pursuant to this Agreement shall be reported immediately to the Central Authority and the Executing Authority of the Party that provided the information; the Central Authorities of both Parties, together with the Executing Authority that provided the information, shall promptly consult on steps to minimize any harm resulting from the disclosure and to ensure that unauthorized or illegal disclosure or use of confidential information does not recur. The Executing Authority that provided the information shall give notice of such unauthorized or illegal disclosure or use to the person, if any, that provided such information to the Executing Authority.
Unauthorized or illegal disclosure or use of information communicated in confidence under this Agreement is a ground for termination of the Agreement by the affected Party, in accordance with the procedures set out in Article XIII.C.
Nothing in this Agreement shall prevent disclosure, in an action or proceeding brought by an Antitrust Authority of the Requesting Party for a violation of the antitrust laws of the Requesting Party, of antitrust evidence provided hereunder to a defendant or respondent in that action or proceeding, if such disclosure is required by the law of the Requesting Party. The Requesting Party shall notify the Central Authority of the Requested Party and the Executing Authority that provided the information at least ten days in advance of any such proposed disclosure, or, if such notice cannot be given because of a court order, then as promptly as possible.

ARTICLE VII
LIMITATIONS ON USE

Except as provided in paragraphs C and D of this Article, antitrust evidence obtained pursuant to this Agreement shall be used or disclosed by the Requesting Party solely for the purpose of administering or enforcing the antitrust laws of the Requesting Party.
Antitrust evidence obtained pursuant to this Agreement may be used or disclosed by a Requesting Party to administer or enforce its antitrust laws only in the investigation or proceeding specified in the request in question and for the purpose stated in the request, unless the Executing Authority that provided such antitrust evidence has given its prior written consent to a different use or disclosure; when the Requested Party is Australia, such consent shall not be given until the Executing Authority has obtained any necessary approval from the Attorney General.
Antitrust evidence obtained pursuant to this Agreement may be used or disclosed by a Requesting Party with respect to the administration or enforcement of laws other than its antitrust laws only if such use or disclosure is essential to a significant law enforcement objective and the Executing Authority that provided such antitrust evidence has given its prior written consent to the proposed use or disclosure.
In the case of the United States, the Executing Authority shall provide such consent only after it has made the determinations required for such consent by its mutual assistance legislation.
Antitrust evidence obtained pursuant to this Agreement that has been made public consistently with the terms of this Article may thereafter be used by the Requesting Party for any purpose consistent with the Parties' mutual assistance legislation.

ARTICLE VIII
CHANGES IN APPLICABLE LAW

The Parties shall provide to each other prompt written notice of actions within their respective States having the effect of significantly modifying their antitrust laws or the confidentiality laws and procedures set out in Annex A to this Agreement.
In the event of a significant modification to a Party's antitrust laws or confidentiality laws and procedures set out in Annex A to this Agreement, the Parties shall promptly consult to determine whether this Agreement or Annex A to this Agreement should be amended.

ARTICLE IX
TAKING OF TESTIMONY AND PRODUCTION OF DOCUMENTS

A person requested to testify and produce documents, records, or other articles pursuant to this Agreement may be compelled to appear and testify and produce such documents, records, and other articles, in accordance with the requirements of the laws of the Requested Party. Every person whose attendance is required for the purpose of giving testimony pursuant to this Agreement is entitled to such fees and allowances as may be provided for by the law of the Requested Party.
Upon request by the Requesting Party, the Executing Authority shall furnish information in advance about the date and place of the taking of testimony or the production of evidence pursuant to this Agreement.
The Executing Authority shall, to the extent permitted by the laws and other important interests of the Requested Party, permit the presence during the execution of the request of persons specified in the request, and shall, to the extent permitted by the laws and other important interests of the Requested Party, allow such persons to question the person giving the testimony or providing the evidence.
The Executing Authority shall, to the extent permitted by the laws of the Requested Party, comply with any instructions of the Requesting Party with respect to any claims of legal privilege, immunity, or incapacity under the laws of the Requesting Party.
The Executing Authority shall, to the extent permitted by the laws of the Requested Party, permit a person whose testimony is to be taken pursuant to this Article to have counsel present during the testimony.
A Requesting Party may ask the Requested Party to facilitate the appearance in the Requesting Party's territory of a person located in the territory of the Requested Party, for the purpose of being interviewed or giving testimony. The Requesting Party shall indicate the extent to which the person's expenses will be paid. Upon receiving such a request, the Executing Authority shall invite the person to appear before the appropriate authority in the territory of the Requesting Party. The Executing Authority shall promptly inform the Requesting Party of the person's response.
Antitrust evidence consisting of testimony or documentary evidence provided by the Requested Party pursuant to this Agreement shall be authenticated in accordance with the requirements of the law of the Requesting Party, in so far as such requirements would not violate the laws of the Requested Party.

ARTICLE X
SEARCH AND SEIZURE

Where a request is to be executed by means of the search and seizure of antitrust evidence, the request shall include such information as is necessary to justify such action under the laws of the Requested Party. The Central Authorities shall confer, as needed, on alternative, equally effective procedures for compelling or obtaining the antitrust evidence that is the subject of a request.
Upon request, every official of a Requested Party who has custody of antitrust evidence seized pursuant to this Agreement shall certify the continuity of custody, the identity of the antitrust evidence, and the integrity of its condition; the Requested Party shall furnish such certifications in the form specified by the Requesting Party.

ARTICLE XI
RETURN OF ANTITRUST EVIDENCE

At the conclusion of the investigation or proceeding specified in a request, the Central Authority or the Antitrust Authority of the Requesting Party shall return to the Central Authority or the Antitrust Authority of the Requested Party from which it obtained antitrust evidence all such evidence obtained pursuant to the execution of a request under this Agreement, along with all copies thereof, in the possession or control of the Central Authority or Antitrust Authority of the Requesting Party; provided, however, that antitrust evidence that has become evidence in the course of judicial or administrative proceedings or that has properly entered the public domain is not subject to this requirement.

ARTICLE XII
COSTS

Unless otherwise agreed, the Requested Party shall pay all costs of executing a request, except for the fees of expert witnesses, the costs of translation, interpretation, and transcription, and the allowances and expenses related to travel to the territory of the Requested Party, pursuant to Articles IX and X, by officials of the Requesting Party.

ARTICLE XIII
ENTRY INTO FORCE AND TERMINATION

This Agreement shall enter into force upon notification by each Party to the other through diplomatic channels that it has completed its necessary internal procedures.
Assistance under this Agreement shall be available in investigations or proceedings under the Parties' antitrust laws concerning conduct or transactions occurring before as well as after this Agreement enters into force.
As stated in Article VI.D of this Agreement, a Party may unilaterally elect to terminate this Agreement upon the unauthorized or illegal disclosure or use of confidential antitrust evidence provided hereunder; provided, however, that neither Party shall make such an election until after it has consulted with the other Party, pursuant to Article VI.C, regarding steps to minimize any harm resulting from the unauthorized or illegal disclosure or use of information communicated in confidence under this Agreement, and steps to ensure that such disclosure or use does not recur. Termination shall take effect immediately upon notice or at such future date as may be determined by the terminating Party.
On termination of this Agreement, the Parties agree, subject to Article VI.E and Article VII, to maintain the confidentiality of any request and information communicated to them in confidence by the other Party under this Agreement prior to its termination; and to return, in accordance with the terms of Article XI, any antitrust evidence obtained from the other Party under this Agreement; provided, however, that any such request or information that has become public in the course of public judicial or administrative proceedings is not subject to this requirement.
In addition to the procedure set forth in paragraph C of this Article, either Party may terminate this Agreement by means of written notice through diplomatic channels. Termination shall take effect 30 days after the date of receipt of such notification.
IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective Governments, have signed this Agreement.

DONE at Washington, this 27th day of April, 1999, in duplicate, in the English language.

UNITED STATES OF AMERICA - GERMANY ANTITRUST ACCORD

Subject to ratification by both countries, the United States and West Germany agreed to the following on June 23, 1976.
Agreement Between the Government of the United States of America and the Government of the Federal Republic of Germany Relating to Mutual Cooperation Regarding Restrictive Business Practices.
The Government of the United States of America and the Government of the Federal Republic of Germany, considering that restrictive business practices affecting their domestic or international trade are prejudicial to the economic and commercial interests of their countries,
Convinced that action against these practices can be made more effective by the regularization of cooperation between their antitrust authorities, and Having regard, in this respect, to their Treaty of Friendship, Commerce, and Navigation and to the Recommendations of the Council of the Organization for Economic Cooperation and Development Concerning Cooperation Between Member Countries on Restrictive Business Practices Affecting International Trade adopted on October 5, 1967, and on July 3, 1973,
Have agreed as follows:

Article 1

For the purpose of this Agreement, the following terms shall have the meanings indicated:
(a) "Antitrust laws" shall mean, in the United States of America, the Sherman Act (15 U.S.C. __ 1-11), the Clayton Act (15 U.S.C. _ 12 et seq.), and the Federal Trade Commission Act (15 U.S.C. _ 41 et seq.), and in the Federal Republic of Germany, the Act Against Restraints on Competition ("Gesetz gegen Wettbewerbsbeschr„nkungen") (BGB1. I 1974, 869) as those Acts have been and may from time to time be amended.
(b) "Antitrust authorities" shall mean, in the United States of America, the Antitrust Division of the United States Department of Justice and the Federal Trade Commission, and, in the Federal Republic of Germany, the Federal Minister of Economics ("Bundesminister fur Wirtschaft") and the Federal Cartel Office ("Bundeskartellamt") and successors in each country.
(c) "Information" shall include reports, documents, memoranda, expert opinions, legal briefs and pleadings, decisions of administrative or judicial bodies, and other written or computerized records.
(d) "Restrictive business practices" shall include all practices which may violate, or are regulated under, the antitrust laws of either party.
(e) "Antitrust investigation or proceeding" shall mean any investigation or proceeding related to restrictive business practices and conducted by an antitrust authority under its antitrust laws.

Article 2

(1) Each party agrees that its antitrust authorities will cooperate and render assistance to the antitrust authorities of the other party, to the extent set forth in this Agreement, in connection with:
(a) antitrust investigations or proceedings,
(b) studies related to competition policy and possible changes in antitrust laws, and
(c) activities related to the restrictive business practice work of international organizations of which both parties are members.
(2) Each party agrees that it will provide the other party with any significant information which comes to the attention of its antitrust authorities and which involves restrictive business practices which, regardless of origin, have a substantial effect on the domestic or international trade of such other party.
(3) Each party agrees that, upon request of the other party, its antitrust authorities will obtain for and furnish such other party with such information as such other party may request in connection with a matter referred to in Article 2, paragraph 1, and will otherwise provide advice and assistance in connection therewith. Such advice and assistance shall include, but not necessarily be limited to, the exchange of information and a summary of experience relating to particular practices where either of the antitrust authorities of the requested party has dealt with or has information relating to a practice involved in the request. Such assistance shall also include the attendance of public officials of the requested party to give information, views or testimony in regard to any antitrust investigation or proceeding, legislation or policy, and the transmittal or the making available of documents and legal briefs and pleadings of the antitrust authorities of the requested party (or duly authenticated or certified copies thereof).
(4) An antitrust authority of a party, in seeking to obtain information or interviews on a voluntary basis from a person or enterprise within the jurisdiction of the other party, may request such other party to transmit a communication seeking such information or interviews to such person or enterprise. In that event, the other party will transmit such communication and, if so requested, will (if such is the case) notify such person or enterprise that the requested party has no objection to voluntary compliance with the request.
(5) Each party agrees that, upon the request of an antitrust authority of the other party, its antitrust authorities will consult with the requesting party concerning possible coordination of concurrent antitrust investigations or proceedings in the two countries which are related or affect each other.

Article 3

(1) Either party may decline, in whole or in part, to render assistance under Article 2 of this Agreement, or may comply with any request for such assistance subject to such terms and conditions as the complying party may establish, if such party determines that:

(a) compliance would be prohibited by legal protections of confidentiality or by other domestic law of the complying party; or

(b) compliance would be inconsistent with its security, public policy or other important national interests;

(c) the requesting party is unable or unwilling to comply with terms or conditions established by the complying party, including conditions designed to protect the confidentiality of information requested; or

(d) the requesting party would not be obligated to comply with such request, by reason of any grounds set forth in items (a), (b) or (c) above, if such request had been made by the requested party.

(2) Neither party shall be obligated to employ compulsory powers in order to obtain information for, or otherwise provide advice and assistance to, the other party pursuant to this Agreement.
(3) Neither party shall be obligated to undertake efforts in connection with this Agreement which are likely to require such substantial utilization of personnel or resources as to burden unreasonably its own enforcement duties.

Article 4

(1) Each party agrees that it will act, to the extent compatible with its domestic law, security, public policy or other important national interests, so as not to inhibit or interfere with any antitrust investigation or proceeding of the other party.
(2) Where the application of the antitrust laws of one party, including antitrust investigations or proceedings, will be likely to affect important interests of the other party, such party will notify such other party and will consult and coordinate with such other party to the extent appropriate under the circumstances.

Article 5

The confidentiality of information transmitted shall be maintained in accordance with the law of the party receiving such information, subject to such terms and conditions as may be established by the complying party furnishing such information. Each party agrees that it will use information received under this Agreement only for purposes of its antitrust authorities as set forth in Article 2, paragraph 1.

Article 6

(1) The terms of this Agreement shall be implemented, and obligations under this Agreement shall be discharged, in accordance with the laws of the respective parties, by their respective antitrust authorities which shall develop appropriate procedures in connection therewith.
(2) Requests for assistance pursuant to this Agreement shall be made or confirmed in writing, shall be reasonably specific and shall include the following information as appropriate:

(a) the antitrust authority or authorities to whom the request is directed;
(b) the antitrust authority or authorities making the request;
(c) the nature of the antitrust investigation or proceeding, study or other activity involved;
(d) the object of and reason for the request; and
(e) the names and addresses of relevant persons or enterprises, if known.

Such requests may specify that particular procedures be followed or that a representative of the requesting party be present at requested proceedings or in connection with other requested actions.
(3) The requesting party shall be advised, to the extent feasible, of the time, place and type of action to be taken by the requested party in response to any request for assistance under this Agreement.
(4) If any such request cannot be fully complied with, the requested party shall promptly notify the requesting party of its refusal or inability to so comply, stating the grounds for such refusal, any terms or conditions which it may establish in connection therewith and any other information which it considers relevant to the subject of the request.

Article 7

All direct expenses incurred by the requested party in complying with a request for assistance under this Agreement shall, upon request, be paid or reimbursed by the requesting party. Such direct expenses may include fees of experts, costs of interpreters, travel and maintenance expenses of experts, interpreters and employees of antitrust authorities, transcript and reproduction costs, and other incidental expenses, but shall not include any part of the salaries of employees of antitrust authorities.

Article 8

This Agreement shall also apply to Land Berlin provided that the Government of the Federal Republic of Germany does not make a contrary declaration to the Government of the United States of America within three months of the date of entry into force of this Agreement.

Article 9

(1) This Agreement shall enter into force one month from the date on which the parties shall have informed each other in an exchange of diplomatic notes that all the domestic legal requirements for such entry into force have been fulfilled.
(2) This Agreement shall remain in force until terminated upon six months' notice given in writing by one of the parties to the other.
Done at Bonn, in duplicate, in the English and German languages, both texts being equally authentic, this twenty-third day of June, 1976.

AGREEMENT BETWEEN THE GOVERNMENT OF THE UNITED STATES OF
AMERICA AND THE EUROPEAN COMMUNITIES
ON THE APPLICATION OF POSITIVE COMITY PRINCIPLES IN THE ENFORCEMENT OF THEIR
COMPETITION LAWS

The Government of the United States of America of the one part, and the European Community and the European Coal and Steel Community of the other part (hereinafter "the European Communities"):
Having regard to the 23 September 1991 Agreement between the Government of the United States of America and the European Communities Regarding the Application of Their Competition Laws, and the exchange of interpretative letters dated 31 May and 31 July 1995 in relation to that Agreement (together hereinafter "the 1991 Agreement");
Recognizing that the 1991 Agreement has contributed to coordination, cooperation, and avoidance of conflicts in competition law enforcement;
Noting in particular Article V of the 1991 Agreement, commonly referred to as the "Positive Comity" article, which calls for cooperation regarding anticompetitive activities occurring in the territory of one Party that adversely affect the interests of the other Party;
Believing that further elaboration of the principles of positive comity and of the implementation of those principles would enhance the 1991 Agreement's effectiveness in relation to such conduct; and
Noting that nothing in this Agreement or its implementation shall be construed as prejudicing either Party's position on issues of competition law jurisdiction in the international context,
Have agreed as follows:

Article I

Scope and Purpose of this Agreement

1.This Agreement applies where a Party satisfies the other that there is reason to believe that the following circumstances are present:

(a)Anticompetitive activities are occurring in whole or in substantial part in theterritory of one of the Parties and are adversely affecting the interests of the otherParty; and

(b)The activities in question are impermissible under the competition laws of the Party in the territory of which the activities are occurring.

2.The purposes of this Agreement are to:
(a)Help ensure that trade and investment flows between the Parties and competition and consumer welfare within the territories of the Parties are not impeded by anticompetitive activities for which the competition laws of one or both Parties can provide a remedy, and
(b)Establish cooperative procedures to achieve the most effective and efficient enforcement of competition law, whereby the competition authorities of each Party will normally avoid allocating enforcement resources to dealing with anticompetitive activities that occur principally in and are directed principally towards the other Party's territory, where the competition authorities of the other Party are able and prepared to examine and take effective sanctions under their law to deal with those activities.

Article II

Definitions

As used in this Agreement:
1. "Adverse effects" and "adversely affected" mean harm caused by anticompetitive activities to:
(a)the ability of firms in the territory of a Party to export to, invest in, or otherwise compete in the territory of the other Party, or
(b)competition in a Party's domestic or import markets.

2. "Requesting Party" means a Party that is adversely affected by anticompetitive activities occurring in whole or in substantial part in the territory of the other Party.

3. "Requested Party" means a Party in the territory of which such anticompetitive activities appear to be occurring.

4. "Competition law(s)" means:
(a)for the European Communities, Articles 85, 86, and 89 of the Treaty establishing the European Community (EC), Articles 65 and 66(7) of the Treaty establishing the European Coal and Steel Community (ECSC), and their implementing instruments, to the exclusion of Council Regulation (EEC) No 4064/89 on the control of concentrations between undertakings, and
(b)for the United States of America, the Sherman Act (15 U.S.C. §§ 1-7), the Clayton Act (15 U.S.C. §§ 12-27, except as it relates to investigations pursuant to Title II of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, 15 U.S.C. § 18a), the Wilson Tariff Act (15 U.S.C. §§ 8-11), and the Federal Trade Commission Act (15 U.S.C. §§ 41-58, except as these sections relate to consumer protection functions), as well as such other laws or regulations as the Parties shall jointly agree in writing to be a "competition law" for the purposes of this Agreement.

5. "Competition authorities" means:
(a)for the European Communities, the Commission of the European Communities, as to its responsibilities pursuant to the competition laws of the European Communities, and
(b)for the United States, the Antitrust Division of the United States Department of Justice and the Federal Trade Commission.

6. "Enforcement activities" means any application of competition law by way of investigation or proceeding conducted by the competition authorities of a Party.

7. "Anticompetitive activities" means any conduct or transaction that is impermissible under the competition laws of a Party.
 

Article III

Positive Comity

The competition authorities of a Requesting Party may request the competition authorities of a Requested Party to investigate and, if warranted, to remedy anticompetitive activities in accordance with the Requested Party's competition laws. Such a request may be made regardless of whether the activities also violate the Requesting Party's competition laws, and regardless of whether the competition authorities of the Requesting Party have commenced or contemplate taking enforcement activities under their own competition laws.

1. The competition authorities of the Parties may agree that the competition authorities of the Requesting Party will defer or suspend pending or contemplated enforcement activities during the pendency of enforcement activities of the Requested Party.
2. The competition authorities of a Requesting Party will normally defer or suspend theirown enforcement activities in favor of enforcement activities by the competition authorities of the Requested Party when the following conditions are satisfied:
(a)The anticompetitive activities at issue:

(i)do not have a direct, substantial and reasonably foreseeable impact on consumers in the Requesting Party's territory, or
(ii)where the anticompetitive activities do have such an impact on the Requesting Party's consumers, they occur principally in and are directed principally towards the other Party's territory;

(b)The adverse effects on the interests of the Requesting Party can be and are likely to be fully and adequately investigated and, as appropriate, eliminated or adequately remedied pursuant to the laws, procedures, and available remedies of the Requested Party. The Parties recognize that it may be appropriate to pursue separate enforcement activities where anticompetitive activities affecting both territories justify the imposition of penalties within both jurisdictions; and
(c)The competition authorities of the Requested Party agree that in conducting their own enforcement activities, they will:

(i)devote adequate resources to investigate the anticompetitive activities and, where appropriate, promptly pursue adequate enforcement activities;
(ii)use their best efforts to pursue all reasonably available sources of information, including such sources of information as may be suggested by the competition authorities of the Requesting Party;
(iii)inform the competition authorities of the Requesting Party, on request or at reasonable intervals, of the status of their enforcement activities and intentions, and where appropriate provide to the competition authorities of the Requesting Party relevant confidential information if consent has been obtained from the source concerned. The use and disclosure of such information shall be governed by Article V;
(iv)promptly notify the competition authorities of the Requesting Party of any change in their intentions with respect to investigation or enforcement;
(v)use their best efforts to complete their investigation and to obtain a remedy or initiate proceedings within six months, or such other time as agreed to by the competition authorities of the Parties, of the deferral or suspension of enforcement activities by the competition authorities of the Requesting Party;
(vi)fully inform the competition authorities of the Requesting Party of the results of their investigation, and take into account the views of the competition authorities of the Requesting Party, prior to any settlement, initiation of proceedings, adoption of remedies, or termination of the investigation; and
(vii)comply with any reasonable request that may be made by the competition authorities of the Requesting Party.

When the above conditions are satisfied, a Requesting Party which chooses not to defer or suspend its enforcement activities shall inform the competition authorities of the Requested Party of its reasons.
3.The competition authorities of the Requesting Party may defer or suspend their own enforcement activities if fewer than all of the conditions set out in paragraph 2 are satisfied.
4.Nothing in this Agreement precludes the competition authorities of a Requesting Party that choose to defer or suspend independent enforcement activities from later initiating or reinstituting such activities. In such circumstances, the competition authorities of the Requesting Party will promptly inform the competition authorities of the Requested Party of their intentions and reasons. If the competition authorities of the Requested Party continue with their own investigation, the competition authorities of the two Parties shall,where appropriate, coordinate their respective investigations under the criteria and procedures of Article IV of the 1991 Agreement.
Article V
Confidentiality and Use of Information
Where pursuant to this Agreement the competition authorities of one Party provide information to the competition authorities of the other Party for the purpose of implementing this Agreement, that information shall be used by the latter competition authorities only for that purpose. However, the competition authorities that provided the information may consent to another use, on condition that where confidential information has been provided pursuant to Article IV.2 (c) (iii) on the basis of the consent of the source concerned, that source also agrees to the other use . Disclosure of such information shall be governed by the provisions of Article VIII of the 1991 Agreement and the exchange of interpretative letters dated 31 May and 31 July 1995.

 

Article VI

Relationship to the 1991 Agreement

This Agreement shall supplement and be interpreted consistently with the 1991 Agreement, which remains fully in force.

Nothing in this Agreement shall be interpreted in a manner inconsistent with the existing laws, or as requiring any change in the laws, of the United States of America or the European Communities or of their respective states or Member States.

1. This Agreement shall enter into force upon signature.
2. This Agreement shall remain in force until 60 days after the date on which either Party notifies the other Party in writing that it wishes to terminate the Agreement.

IN WITNESS WHEREOF, the undersigned, being duly authorized, have signed this Agreement.
DONE at Washington and Brussels, in duplicate, in the English language.
For the Government of the United States of America
Date: June 4, 1998/S/ Janet Reno
Date: June 4, 1998/S/ Robert Pitofsky
For the European Community and for the European Coal and Steel Community
Date: 3.6.98/S/ Margaret Beckett
Date: 4.6.98/S/ Karel Van Miert

AGREEMENT REGARDING THE APPLICATION
OF THEIR COMPETITION LAWS

THE GOVERNMENT OF
THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF
THE STATE OF ISRAEL

The Government of the United States of America and the Government of the State of Israel (hereinafter referred to as "Parties");
Desiring to promote mutual relations and further the historic friendship between them;
Determined to strengthen and develop the economic relations between them for their mutual benefit;
Having regard to their close economic relations and cooperation within the framework the Agreement on the Establishment of a Free Trade Area Between the Government of the United States of America and the Government of the State of Israel;
Noting that the sound and effective enforcement of their competition laws is a matter of importance to the efficient operation of markets within the free trade area and to the economic welfare of the Parties' citizens;
Recognizing that coordination of enforcement activities may, in appropriate cases, result in a more effective resolution of the Parties' respective concerns than would be attained through independent action;
Noting that from time to time differences may arise between the Parties concerning the application of their competition laws to conduct or transactions that implicate the important interests of both Parties;
Noting further their commitment to give careful consideration to each other's important interests in the application of their competition laws; and
Wishing to promote cooperation in areas which are of mutual interest.
Have agreed as follows:

Article I
PURPOSE AND DEFINITIONS

The purpose of this Agreement is to promote cooperation and coordination between the competition authorities of the Parties, to avoid conflicts arising from the application of the Parties' competition laws and to minimize the impact of differences on their respective important interests.
For the purposes of this Agreement, the following terms shall have the following definitions:
"Anticompetitive activity(ies)" means any conduct or transaction that may be subject to penalties or other relief under the competition laws of a Party;
"Competition authority(ies)" means
for Israel, the Controller of Restrictive Trade Practices;
for the United States of America, the United States Department of Justice and the Federal Trade Commission;
"Competition law(s)" means
for Israel, the Restrictive Trade Practices Law 5748-1988;
for the United States of America, the Sherman Act (15 U.S.C. §§ 1- 7), the Clayton Act (15 U.S.C. §§ 12-27), the Wilson Tariff Act (15 U.S.C. §§ 8-11) and the Federal Trade Commission Act (15 U.S.C. §§ 41-58), to the extent that it applies to unfair methods of competition, as well as any amendments thereto, and such other laws or regulations as the Parties may from time to time agree in writing to be a "competition law" for the purposes of this Agreement; and
"Enforcement activity(ies)" means any investigation or proceeding conducted by a Party in relation to its competition laws.
Any reference in this Agreement to a specific provision in either Party's competition law shall be interpreted as referring to that provision as amended from time to time and to any successor provision thereof. Each Party shall promptly notify the other of any amendments to its competition laws.

Article II
NOTIFICATION

Each Party shall, subject to Article IX(1), notify the other Party in the manner provided by this Article and Article XI with respect to its enforcement activities that may affect important interests of the other Party.
Enforcement activities to be notified pursuant to this Article are those that:
are relevant to enforcement activities of the other Party;
involve anticompetitive practices, other than mergers or acquisitions, carried out in whole or in substantial part in the other State;
involve mergers or acquisitions in which one or more of the parties to the transaction, or a company controlling one or more of the parties to a transaction, is a company incorporated or organized under the laws of the other Party or of one of its states;
involve conduct believed to have been required, encouraged, or approved by the other Party;
involve remedies that expressly require or prohibit conduct in the other State or are otherwise directed at such conduct; or
involve the seeking of information located in the other State.
Notification pursuant to this Article shall ordinarily be given as soon as a Party's competition authorities become aware that notifiable circumstances are present, and in any event in sufficient time to permit the views of the other Party to be taken into account.
When the competition authorities of a Party request that a person provide information, documents or other records located in the notified State, or request oral testimony in a proceeding or participation in a personal interview by a person located in the notified State, notification shall be given:
if compliance with a request for written information, documents or other records is voluntary, at or before the time that the request is made;
if compliance with a request for written information, documents or other records is compulsory, at least seven (7) days prior to the request, (or, when seven (7) days' notice cannot be given, as promptly as circumstances permit); and
in the case of oral testimony or personal interviews, at or before the time arrangements for the interview or testimony are made.
Notification that would otherwise be required by this Article is not required with respect to telephone contacts with a person where
 that person is not the subject of an investigation,
the contact seeks only an oral response on a voluntary basis (although the availability and possible voluntary provision of documents may be discussed) and
the other Party's important interests do not appear to be otherwise implicated, unless the other Party requests otherwise in relation to a particular matter.
Notification is not required for each subsequent request for information in relation to the same matter unless the Party seeking information becomes aware of new issues bearing on the important interests of the other Party, or the other Party requests such notification in relation to a particular matter.
The Parties acknowledge that officials of either Party may visit the other State in the course of conducting investigations pursuant to their respective competition laws. Such visits shall be subject to notification pursuant to this Article and the consent of the notified Party.
Notifications shall be sufficiently detailed to enable the notified Party to make an initial evaluation of the effect of the enforcement activity on its own important interests, and shall include the nature of the activities under investigation and the legal provisions concerned. Where possible, notifications shall include the names and locations of the persons involved.

Article III
ENFORCEMENT COOPERATION

The Parties acknowledge that it is in their common interest to cooperate in the detection of anticompetitive activities and the enforcement of their competition laws to the extent compatible with their respective laws and important interests, and within their reasonably available resources. The Parties further acknowledge that it is in their common interest to share information which will facilitate the effective application of their competition laws and promote better understanding of each other's enforcement policies and activities.
The Parties will consider adopting such further arrangements as may be feasible and desirable to enhance cooperation in the enforcement of their competition laws.
Each Party's competition authorities will, to the extent compatible with that Party's laws, enforcement policies and other important interests, assist the other Party's competition authorities, upon request, in locating and securing evidence and witnesses, and in securing voluntary compliance with requests for information, in the requested State;
inform the other Party's competition authorities with respect to enforcement activities involving conduct that may also have an adverse effect on competition within the other State;
provide to the other Party's competition authorities, upon request, such information within its possession as the requesting Party's competition authorities may specify that is relevant to the requesting Party's enforcement activities; and
provide the other Party's competition authorities with any significant information that comes to their attention about anticompetitive activities that may be relevant to, or may warrant, enforcement activity by the other Party's competition authorities.
Nothing in this Agreement shall prevent the Parties from seeking or providing assistance to one another pursuant to other agreements, treaties, arrangements or practices between them.

Article IV
COORDINATION WITH REGARD TO RELATED MATTERS

Where both Parties' competition authorities are pursuing enforcement activities with regard to related matters, they will consider coordination of their enforcement activities. In such matters, the Parties may invoke such mutual assistance arrangements as may be in force from time to time.
In considering whether particular enforcement activities should be coordinated, either in whole or in part, the Parties' competition authorities shall take into account the following factors, among others:
the effect of such coordination on the ability of both Parties to achieve their respective enforcement objectives;
the relative abilities of the Parties' competition authorities to obtain information necessary to conduct the enforcement activities; the extent to which either Party's competition authorities can secure effective relief against the anticompetitive activities involved;
the possible reduction of costs to the Parties and to the persons subject to enforcement activities; and
the potential advantage of coordinated remedies to the Parties and to the persons subject to the enforcement activities.
In any coordination arrangement, each Party's competition authorities shall seek to conduct their enforcement activities consistently
with the enforcement objectives of the other Party's competition authorities.
In the case of concurrent or coordinated enforcement activities, the competition authorities of each Party shall consider, upon request by the competition authorities of the other Party and where consistent with the requested Party's enforcement interests, ascertaining whether persons that have provided confidential information in connection with those enforcement activities will consent to the sharing of such information between the Parties' competition authorities.
Either Party's competition authorities may at any time notify the other Party's competition authorities that they intend to limit or terminate coordinated enforcement and pursue their enforcement activities independently and subject to the other provisions of this Agreement.

Article V
POSITIVE COMITY

The Parties note that anticompetitive activities may occur within one State that, in addition to violating that State's competition laws, adversely affect important interests of the other Party. The Parties agree that it is in their common interest, consistent with the principle of positive comity, to seek relief against anticompetitive activities of this nature.
A Party may request that the other Party's competition authorities initiate enforcement activities against anticompetitive activities carried out in the requested State, if the requesting Party believes that such activities adversely affect its important interests. The request shall be as specific as possible about the nature of the anticompetitive activities and their effects on the interests of the requesting Party, and shall include an offer of such further information and other cooperation as the requesting Party's competition authorities are able to provide. The requested Party's competition authorities shall carefully consider whether to initiate enforcement activities with respect to the anticompetitive activities identified in the request. The requested Party's competition authorities shall promptly inform the requesting Party of its decision. If enforcement activities are initiated, the requested Party's competition authorities shall advise the requesting Party of their outcome and, to the extent possible, of significant interim developments.
Nothing in this Article limits the discretion of the requested Party's competition authorities under its competition laws and enforcement policies as to whether to undertake enforcement activities with respect to the anticompetitive activities identified in a request, or precludes the requesting Party's competition authorities from undertaking enforcement activities with respect to such anticompetitive activities.

Article VI
AVOIDANCE OF CONFLICTS

Within the framework of its own laws and to the extent compatible with its important interests, each Party shall, having regard to the purpose of this Agreement as set out in Article I, give careful consideration to the other Party's important interests throughout all phases of its enforcement activities, including decisions regarding the initiation of an investigation or proceeding, the scope of an investigation or proceeding and the nature of the remedies or penalties sought in each case.
When a Party informs the other that a specific enforcement activity may affect the first Party's important interests, the second Party shall provide timely notice of developments of significance to those interests.
While an important interest of a Party may exist in the absence of official involvement by the Party with the activity in question, it is recognized that such interest would normally be reflected in antecedent laws, decisions or statements of policy by its competent authorities.
A Party's important interests may be affected at any stage of enforcement activity by the other Party. The Parties recognize the desirability of minimizing any adverse effects of their enforcement activities on each other's important interests, particularly in the choice of remedies. Typically the potential for adverse impact on one Party's important interests arising from enforcement activity by the other Party is less at the investigative stage and greater at the stage at which conduct is prohibited or penalized, or at which other forms of remedial orders are imposed.
Where it appears that one Party's enforcement activities may adversely affect the important interests of the other Party, each Party shall, in assessing what measures it will take, consider all appropriate factors, which may include but are not limited to:
the relative significance to the anticompetitive activities involved of conduct occurring within one State as compared to conduct occurring within that of the other;
the relative significance and foreseeability of the effects of the anticompetitive activities on one Party's important interests as compared to the effects on the other Party's important interests;
the presence or absence of a purpose on the part of those engaged in the anticompetitive activities to affect consumers, suppliers or competitors within the enforcing State;
the degree of conflict or consistency between the first Party's enforcement activities (including remedies) and the other Party's laws or other important interests;
whether private persons, either natural or legal, will be placed under conflicting requirements by both Parties;
the existence or absence of reasonable expectations that would be furthered or defeated by the enforcement activities;
the location of relevant assets;
the degree to which a remedy, in order to be effective, must be carried out within the other State; and
the extent to which enforcement activities of the other Party with respect to the same persons, including judgments or undertakings resulting from such activities, would be affected.

Article VII
CONSULTATIONS

Either Party may request consultations regarding any matter relating to this Agreement. The request for consultations shall indicate the reasons for the request and whether any procedural time limits or other constraints require that consultations be expedited. Each Party shall consult promptly when so requested with the view to reaching a conclusion that is consistent with the principles set forth in this Agreement.
Consultations under this Article shall take place at the appropriate level as determined by each Party.
During consultations under this Article, each Party shall provide to the other as much information as it is able in order to facilitate the broadest possible discussion regarding the relevant aspects of the matter that is the subject of consultations. Each Party shall carefully consider the representations of the other Party in light of the principles set out in this Agreement and shall be prepared to explain the specific results of its application of those principles to the matter that is the subject of consultations.

Article VIII
INTERAGENCY MEETINGS

Officials of the Parties' competition authorities shall meet periodically, in the United States and Israel, to:
exchange information on their current enforcement efforts and priorities in relation to their competition laws;
exchange information on economic sectors of common interest;
discuss policy changes that they are considering; and
discuss other matters of mutual interest relating to the application of their competition laws and the operation of this Agreement.

Article IX
CONFIDENTIALITY OF INFORMATION

Notwithstanding any other provision of this Agreement, neither Party is required to communicate information to the other Party if such communication is prohibited by the laws of the Party possessing the information or would be incompatible with that Party's important interests.
Unless otherwise agreed by the Parties, each Party shall, to the fullest extent possible, maintain the confidentiality of any information communicated to it in confidence by the other Party under this Agreement. Each Party shall oppose, to the fullest extent possible consistent with that Party's laws, any application by a third party for disclosure of such confidential information.
The degree to which either Party communicates information to the other pursuant to this Agreement may be subject to and dependent upon the acceptability of the assurances given by the other Party with respect to confidentiality and with respect to the purposes for which the information will be used.
Notifications and consultations pursuant to Articles II and VII of this Agreement and other communications between the Parties in relation thereto shall be deemed to be confidential. The notified Party may, after the notifying Party's competition authorities have advised a person who is the subject of a notification of the enforcement activities referred to in the notification, communicate the fact of the notification to, and consult with that person concerning the subject of the notification. The notifying Party shall, upon request, promptly inform the notified Party of the time at which the person has, or will be, advised of the enforcement activities in question.
Subject to paragraph 2, information communicated in confidence by a Party's competition authorities to the competition authorities of the other Party in the context of enforcement cooperation or coordination pursuant to Articles III, IV or V of this Agreement shall not be communicated to third parties or to other agencies of the receiving competition authorities' government, without the consent of the competition authorities that provided the information. A Party's competition authorities may, however, communicate such information to the Party's law enforcement officials for the purpose of competition law enforcement.
Information communicated in confidence by a Party's competition authorities to the competition authorities of the other Party in the context of enforcement cooperation or coordination pursuant to Articles III, IV or V of this Agreement shall not be used for purposes other than competition law enforcement, without the consent of the competition authorities that provided the information.

Article X
EXISTING LAWS

Nothing in this Agreement shall require a Party to take any action or to refrain from any action, if to do so would be inconsistent with its existing laws, or require any change in the laws of the Parties or, in the case of the United States, of its states.

Article XI
COMMUNICATIONS UNDER THIS AGREEMENT

Communications under this Agreement may be carried out by direct communication between the competition authorities of the Parties. Notifications under Article II and requests under Articles V(2) and VII(1) shall, however, be confirmed promptly in writing through customary diplomatic channels and shall refer to the initial communication between the competition authorities and repeat the information supplied therein.

Article XII
ENTRY INTO FORCE AND TERMINATION

This Agreement shall enter into force on the date of the latter notification confirming the fulfillment by the Parties of their relevant internal procedures for the entry into force of this Agreement.
This Agreement shall remain in force until 60 days after the date on which either Party notifies the other Party in writing that it wishes to terminate the Agreement.
IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective Governments, have signed this Agreement. DONE at Washington, in duplicate, this 15th day of March, 1999, corresponding to the 27th day of Adar, 5759, in the English and Hebrew languages, each text being equally authentic.

AGREEMENT BETWEEN THE EUROPEAN COMMUNITIES AND THE GOVERNMENT OF CANADA
REGARDING THE APPLICATION OF THEIR COMPETITION LAWS¹⁰

THE GOVERNMENT OF CANADA ("Canada") of the one part and THE EUROPEAN COMMUNITY AND THE EUROPEAN COAL AND STEEL COMMUNITY ("the European Communities") of the other part ("the Parties"):
Considering the close economic relations between them;
Recognising that the world's economies, including those of the Parties, are becoming increasingly interrelated;
Noting that the Parties share the view that the sound and effective enforcement of competition law is a matter of importance to the efficient operation of their respective markets and to trade between them;
Acknowledging their commitment to enhancing the sound and effective enforcement of their competition laws through cooperation and, in appropriate cases, coordination between them in the application of those laws;
Noting that coordination of their enforcement activities may, in certain cases, result in a more effective resolution of the Parties' respective competition concerns than would be attained through independent enforcement action by the Parties;
Acknowledging the Parties' commitment to giving careful consideration to each other's important interests in the application of their competition laws and to using their best efforts to arrive at an accommodation of those interests;
Having regard to the Recommendation of the Organisation for Economic Cooperation and Development Concerning Cooperation Between Member Countries on Restrictive Business Practices Affecting International Trade, adopted on 27 and 28 July 1995; and
Having regard to the Economic Cooperation Agreement between Canada and the European Communities adopted on 6 July 1976, to the Declaration on European Community-Canada Relations adopted on 22 November 1990 and to the Joint Political Declaration on Canada-EU Relations and its accompanying Action Plan adopted on December 17, 1996;
HAVE AGREED AS FOLLOWS:

I. PURPOSE AND DEFINITIONS

1. The purpose of this Agreement is to promote cooperation and coordination between the competition authorities of the Parties and to lessen the possibility or impact of differences between the Parties in the application of their competition laws.
2. In this Agreement,
   "anti-competitive activities" shall mean any conduct or transaction that may be subject to penalties or other relief under the competition laws of a Party;
   "competent authority of a Member State" shall mean that authority of a Member State set out in Annex A.
   Annex A may be added to or modified at any time by the European Communities. Canada will be notified in writing of such additions or modifications before any information is sent to a newly listed authority.
   "competition authority" and "competition authorities" shall mean:

   (i) for Canada, the Commissioner of Competition appointed under the Competition Act, and
   (ii) for the European Communities, the Commission of the European Communities, as to its responsibilities pursuant to the competition laws of the European Communities;

   "competition law or laws" shall mean:

   (i) for Canada, the Competition Act and regulations thereunder, and
   (ii) for the European Communities, Articles 85, 86, and 89 of the Treaty establishing the European Community, Council Regulation (EEC) No 4064/89 on the control of concentrations between undertakings, Articles 65 and 66 of the Treaty establishing the European Coal and Steel Community (ECSC), and their implementing Regulations pursuant to the said Treaties including High Authority Decision No 24-54,

   as well as any amendments thereto and such other laws or regulations as the parties may jointly agree in writing to be a "competition law" for the purposes of this Agreement; and
   "enforcement activity" shall mean any application of competition law by way of investigation or proceeding conducted by the competition authority of a Party.<>

3. Any reference in this Agreement to a specific provision in either Party's competition law shall be interpreted as referring to that provision as amended from time to time and to any successor provisions.

II. NOTIFICATION

1. Each Party shall notify the other Party in the manner provided by this Article and Article IX with respect to its enforcement activities that may affect important interests of the other Party.
2. Enforcement activities that may affect the important interests of the other Party and therefore ordinarily give rise to notifiable circumstances include those that:

(i) are relevant to enforcement activities of the other Party;
(ii) involve anti-competitive activities, other than mergers or acquisitions, carried out wholly or in part in the territory of the other Party;
(iii) involve conduct believed to have been required, encouraged or approved by the other Party or one of its provinces or Member States;
(iv) involve a merger or acquisition in which:

- one or more of the parties to the transaction; or

- a company controlling one or more of the parties to the transaction;

is a company incorporated or organised under the laws of the other Party or one of its provinces or Member States;
(v) involve the imposition of, or application for, remedies by a competition authority that would require or prohibit conduct in the territory of the other Party; or
(vi) involve one of the Parties seeking information located in the territory of the other Party.

3. Notification pursuant to this Article shall ordinarily be given as soon as a competition authority becomes aware that notifiable circumstances are present, and in any event, in accordance with paragraphs 4 through 7 of this Article.
4. Where notifiable circumstances are present with respect to mergers or acquisitions, notification shall be given;
   (a) in the case of the European Communities, when a notice is published in the Official Journal, pursuant to Article 4(3) of Council Regulation (EEC) No 4064/89, or when notice of the transaction is received under Article 66 of the ECSC Treaty and a prior authorisation from the Commission is required under that provision; and
   (b) in the case of Canada, not later than when its competition authority issues a written request for information under oath or affirmation, or obtains an order under section 11 of the Competition Act, with respect to the transaction.
5. (a) When the competition authority of a Party requests that a person provide information, documents or other records located in the territory of the other Party, or requests oral testimony in a proceeding or participation in a personal interview by a person located in the territory of the other Party, notification shall be given at or before the time that the request is made.
   (b) Notification pursuant to subparagraph (a) of this paragraph is required notwithstanding that the enforcement activity in relation to which the said information is sought has previously been notified pursuant to Article II, paragraphs 1 to 3. However, separate notification is not required for each subsequent request for information from the same person made in the course of such enforcement activity unless the notified Party indicates otherwise or unless the Party seeking information becomes aware of new issues bearing upon the important interests of the notified Party.
6. Where notifiable circumstances are present, notification shall also be given far enough in advance of each of the following events to enable the other Party's views to be considered:
   (a) in the case of the European Communities,
   (i) when its competition authority decides to initiate proceedings with respect to the concentration, pursuant to Article 6(1)(c) of Council Regulation (EEC) No 4064/89;
   (ii) in cases other than mergers and acquisitions, the issuance of a statement of objections; or
   (iii) the adoption of a decision or settlement,
   (b) in the case of Canada,
   (i) the filing of an application with the Competition Tribunal;
   (ii) the initiation of criminal proceedings; or
   (iii) the settlement of a matter by way of undertaking or consent order.
7. (a) Each Party shall also notify the other whenever its competition authority intervenes or otherwise participates in a regulatory or judicial proceeding, if the issues addressed in the intervention or participation may affect the other Party's important interests. Notification under this paragraph shall apply only to:
   (i) regulatory or judicial proceedings that are public; and
   (ii) intervention or participation that is public and pursuant to formal procedures.
   (b) Notification shall be made at the time of the intervention or participation or as soon thereafter as possible.
   
8. Notifications shall be sufficiently detailed to enable the notified Party to make an initial evaluation of the effects of the enforcement activity on its own important interests. Notifications shall include the names and addresses of the natural and legal persons involved, the nature of the activities under investigation and the legal provisions concerned.
9. Notifications made pursuant to this Article shall be communicated in accordance with Article IX.

III. CONSULTATIONS

1. Either Party may request consultations regarding any matter relating to this Agreement. The request for consultations shall indicate the reasons for the request and whether any procedural time limits or other constraints require that consultations be expedited. Each Party undertakes to consult promptly when so requested with the view to reaching a conclusion that is consistent with the principles set forth in this Agreement.
2. During consultations under paragraph 1, the competition authority of each Party shall carefully consider the representations of the other Party in light of the principles set out in this Agreement and shall be prepared to explain to the other Party the specific results of its application of those principles to the matter under discussion.

IV. COORDINATION OF ENFORCEMENT ACTIVITIES

1. The competition authority of each Party shall render assistance to the competition authority of the other Party in its enforcement activities to the extent compatible with the assisting Party's laws and important interests.
2. In cases where both Parties competition authorities have an interest in pursuing enforcement activities with regard to related situations, they may agree that it is in their mutual interest to coordinate their enforcement activities. In considering whether particular enforcement activities should be coordinated, either in whole or in part, each Party's competition authority shall take into account the following factors, among others:

(i) the effect of such coordination on the ability of each Party's competition authority to achieve the objectives of its enforcement activities;
(ii) the relative ability of each Party's competition authority to obtain information necessary to conduct the enforcement activities;
(iii) the extent to which either Party's competition authority can secure effective preliminary or permanent relief against the anti-competitive activities involved;
(iv) the opportunity to make more efficient use of resources; and
(v) the possible reduction of cost to persons subject to enforcement activities.

1. (a) The Parties competition authorities may coordinate their enforcement activities by agreeing upon the timing of those activities in a particular matter, while respecting fully their own laws and important interests. Such coordination may, as agreed by the Parties competition authorities, result in enforcement action by one or both Parties competition authorities, as is best suited to attain their objectives. (b) When carrying out coordinated enforcement activity, each Party's competition authority shall seek to maximise the likelihood that the other Party's enforcement objectives will also be achieved.
   (c) Either Party may at any time notify the other Party that it intends to limit or terminate the coordination and pursue its enforcement activities independently and subject to the other provisions of this Agreement.

V. COOPERATION REGARDING ANTI-COMPETITIVE ACTIVITIES IN THE TERRITORYOF ONE PARTY THAT ADVERSELY AFFECT THE INTERESTS OF THE OTHER PARTY

1. The Parties note that anti-competitive activities may occur within the territory of one Party that, in addition to violating that Party's competition laws, adversely affect important interests of the other Party. The Parties agree that it is in both their interests to address anti-competitive activities of this nature.
2. If a Party has reason to believe that anti-competitive activities carried out in the territory of the other Party are adversely affecting, or may adversely affect the first Party's important interests, the first Party may request that the other Party's competition authority initiate appropriate enforcement activities. The request shall be as specific as possible about the nature of the anti-competitive activities and their effects on the interests of the requesting Party, and shall include an offer of such further information and other cooperation as the requesting Party's competition authority is able to provide.
3. The requested Party shall consult with the requesting Party and the requested Party's competition authority shall accord full and sympathetic consideration to the request in deciding whether or not to initiate, or expand, enforcement activities with respect to the anti-competitive activities identified in the request. The requested Party's competition authority shall promptly inform the other Party of its decision and the reasons for that decision. If enforcement activities are initiated, the requested Party's competition authority shall advise the requesting Party of significant developments and the outcome of the enforcement activities.
4. Nothing in this Article limits the discretion of the requested Party's competition authority under its competition laws and enforcement policies as to whether or not to undertake enforcement activities with respect to the anti-competitive activities identified in the request, or precludes the requesting Party's competition authority from undertaking enforcement activities with respect to such anti-competitive activities.

VI. AVOIDANCE OF CONFLICT

1. Within the framework of its own laws and to the extent compatible with its important interests, each Party shall, having regard to the purpose of this Agreement as set out in Article I, give careful consideration to the other Party's important interests throughout all phases of competition enforcement activities, including decisions regarding the initiation of an investigation or proceeding, the scope of an investigation or proceeding and the nature of the remedies or penalties sought in each case.
2. Where it appears that one Party's enforcement activities may adversely affect the important interests of the other Party, each Party shall, consistent with the general principles set out above, use its best efforts to arrive at an appropriate accommodation of the Parties competing interests and in doing so each Party shall consider all relevant factors, including:

(i) the relative significance to the anti-competitive activities involved of conduct occurring within one Party's territory as compared to conduct occurring within that of the other;
(ii) the relative significance and foreseeability of the effects of the anti-competitive activities on one Party's important interests as compared to the effects on the other Party's important interests;
(iii) the presence or absence of a purpose on the part of those engaged in the anti-competitive activities to affect consumers, suppliers or competitors within the enforcing Party's territory;
(iv) the degree of conflict or consistency between the enforcement activities and the other Party's laws or articulated economic policies including those expressed in the application of, or decisions under, their respective competition laws;
(v) whether private persons, either natural or legal, will be placed under conflicting requirements by both Parties;
(vi) the existence or absence of reasonable expectations that would be furthered or defeated by the enforcement activities;
(vii) the location of relevant assets;
(viii) the degree to which a remedy, in order to be effective, must be carried out within the other Party's territory;
(ix) the need to minimise the negative effects on the other Party's important interests, in particular when implementing remedies to address anti-competitive effects within the Party's territory; and
(x) the extent to which enforcement activities of the other Party with respect to the same persons, including judgments or undertakings resulting from such activities, would be affected.

VII. EXCHANGE OF INFORMATION

1. In furtherance of the principles set forth in this Agreement, the Parties agree that it is in their common interest to share information which will facilitate the effective application of their respective competition laws and promote better understanding of each others enforcement policies and activities.
2. Each Party agrees to provide to the other Party upon request such information within its possession as the requesting Party may describe that is relevant to an enforcement activity that is being contemplated or conducted by the requesting Party's competition authority.
3. In the case of concurrent action by the competition authorities of both Parties with a view to the application of their competition law, the competition authority of each Party shall, upon request by the competition authority of the other Party, ascertain whether the natural or legal persons concerned will consent to the sharing of confidential information related thereto between the Parties competition authorities.
4. During consultations pursuant to Article III, each Party shall provide the other with as much information as it is able in order to facilitate the broadest possible discussion regarding the relevant aspects of a particular transaction.

VIII. SEMI-ANNUAL MEETINGS

1. In furtherance of their common interest in cooperation and coordination in relation to their enforcement activities, appropriate officials of the Parties competition authorities shall meet twice a year, or otherwise as agreed between the competition authorities of the Parties, to: (a) exchange information on their current enforcement activities and priorities, (b) exchange information on economic sectors of common interest, (c) discuss policy changes which they are considering, and (d) discuss other matters of mutual interest relating to the application of competition laws.
2. A report on these semi-annual meetings shall be made available to the Joint Cooperation Committee under the Framework Agreement for Commercial and Economic Cooperation between the European Communities and Canada.

IX. COMMUNICATIONS UNDER THIS AGREEMENT
Communications under this Agreement, including notifications under Article II and requests under Articles III and V, may be carried out by direct oral, telephonic or facsimile communication between the competition authorities of the Parties. Notifications under Article II and requests under Articles III and V, however, shall be confirmed promptly in writing through normal diplomatic channels.

X. CONFIDENTIALITY AND USE OF INFORMATION

1. Notwithstanding any other provision of this Agreement, neither Party is required to disclose information to the other Party where such disclosure is prohibited by the laws of the Party possessing the information or would be incompatible with that Party's important interests.
2. Unless otherwise agreed by the Parties, each Party shall, to the fullest extent possible, maintain the confidentiality of any information communicated to it in confidence by the other Party under this Agreement. Each Party shall oppose, to the fullest extent possible, any application by a third party for disclosure of such information.
3. (a) The competition authority of the European Communities, after notice to the Canadian competition authority, will inform the competent authorities of the Member State or Member States whose important interests are affected of the notifications sent to it by the Canadian competition authority.
   (b) The competition authority of the European Communities, after consultation with the Canadian competition authority, will inform the competent authorities of such Member State or Member States of any cooperation and coordination of enforcement activities. However, as regards such activities, the competition authority of the European Communities will respect the Canadian competi
4. Before taking any action which may result in a legal obligation to make available to a third party information provided in confidence under this Agreement, the Parties competition authorities shall consult one another and give due consideration to their respective important interests.
5. Information received by a Party under this Agreement, apart from information received under Article II, shall only be used for the purpose of enforcing that Party's competition laws. Information received under Article II shall only be used for the purpose of this Agreement.
6. A Party may require that information furnished pursuant to this Agreement be used subject to the terms and conditions it may specify. The receiving Party shall not use such information in a manner contrary to such terms and conditions without the prior consent of the other Party.

XI. EXISTING LAW
Nothing in this Agreement shall require a Party to take any action that is inconsistent with its existing laws, or require any change in the laws of the Parties or of their respective provinces or Member States.

XII. ENTRY INTO FORCE AND TERMINATION

1. This Agreement shall enter into force upon signature.
2. This Agreement shall remain in force until 60 days after the date on which either Party notifies the other Party in writing that it wishes to terminate the Agreement.
3. The Parties shall review the operation of this Agreement not more than 24 months from the date of its entry into force, with a view to assessing their cooperative activities, identifying additional areas in which they could usefully cooperate and identifying any other ways in which the Agreement could be improved. The Parties agree that this review will include, among other things, an analysis of actual or potential cases to determine whether their interests could be better served through closer cooperation.

Attached to this Agreement are three letters exchanged between the Parties. These letters form an integral part of this Agreement.

IN WITNESS WHEREOF, the undersigned, being duly authorised, have signed this Agreement.
DONE at Bonn, in duplicate, this 17th day of June, in the English, French, Danish, German, Greek, Spanish, Italian, Dutch, Portuguese, Finnish and Swedish languages, each text being equally authentic.

Werner Müeller
For the European Community

Karel Van Miert
For the European Coal and Steel Community

Jean-Pierre Juneau
For the Government of Canada

AGREEMENT BETWEEN

THE GOVERNMENT OF THE UNITED STATES OF AMERICA
AND THE GOVERNMENT OF JAPAN

CONCERNING
COOPERATION ON ANTICOMPETITIVE ACTIVITIES

The Government of the United States of America and the Government of Japan (hereinafter referred to as "Parties"):
Recognizing that the world's economies are becoming increasingly interrelated, in particular the economies of the United States of America and Japan;
Noting that the sound and effective enforcement of competition laws of each country is a matter of importance to the efficient functioning of their respective markets and to trade between them;
Noting that the sound and effective enforcement of competition laws of each country would be enhanced by cooperation and, where appropriate, coordination between the Parties in the application of those laws;
Noting that from time to time differences may arise between the Parties concerning the application of the competition laws of each country;
Noting their commitment to give careful consideration to the important interests of each Party in the application of the competition laws of each country; and
Having regard to Article XVIII of the Treaty of Friendship, Commerce and Navigation between the United States of America and Japan signed on April 2, 1953, to the Recommendation of the Council of the Organization for Economic Co-operation and Development Concerning Cooperation Between Member Countries on Anticompetitive Practices Affecting International Trade, as revised July 27 and 28, 1995, and to the Recommendation of the Council of the Organization for Economic Co-operation and Development Concerning Effective Action Against Hard Core Cartels adopted on March 25, 1998;
Have agreed as follows:

Article I

1. The purpose of this Agreement is to contribute to the effective enforcement of the competition laws of each country through the development of cooperative relationships between the competition authorities of each Party. The competition authorities of the Parties shall, in accordance with the provisions of this Agreement, cooperate with and provide assistance to each other in their enforcement activities, to the extent compatible with their respective Party's important interests.
2. For the purposes of this Agreement,

(a) the term "anticompetitive activity(ies)" means any conduct or transaction that may be subject to penalties or relief under the competition laws of either country;

(b) the term "competition authority(ies)" means:

(i) for the United States of America, the United States Department of Justice and the Federal Trade Commission; and

(ii)
        for Japan, the Fair Trade Commission;

(c) the term "competition law(s)" means:

(i) for the United States of America, the Sherman Act (15 U.S.C. 1-7), the Clayton Act (15 U.S.C. 12-27), the Wilson Tariff Act (15 U.S.C. 8-11), and the Federal Trade Commission Act (15 U.S.C. 41-58) to the extent that it applies to unfair methods of competition, and their implementing regulations; and

(ii) for Japan, the Law Concerning Prohibition of Private Monopoly and Maintenance of Fair Trade (Law No. 54 of April 14, 1947) (hereinafter referred to as "the Antimonopoly Law") and its implementing regulations.

(d) the term "enforcement activity (ies)" means any investigation or proceeding conducted by a Party in relation to the competition laws of its country. However, (i) the review of business conduct or routine filings and (ii) research, studies or surveys with the objective of examining the general economic situation or general conditions in specific industries are not included.

Article II

1. The competition authority of each Party shall notify the competition authority of the other Party with respect to the enforcement activities of the notifying Party that the notifying competition authority considers may affect the important interests of the other Party.
2. Enforcement activities that may affect the important interests of the other Party include those that:

(a) are relevant to enforcement activities of the other Party;

(b) are against a national or nationals of the other country, or against a company or companies incorporated or organized under the applicable laws and regulations within the territory of the other country;

(c) involve anticompetitive activities, other than mergers or acquisitions, carried out in any substantial part in the territory of the other country;

(d) involve mergers or acquisitions in which

-- one or more of the parties to the transaction, or

-- a company controlling one or more of the parties to the transaction,

is a company incorporated or organized under the applicable laws and regulations within the territory of the other country;

(e) involve conduct considered by the notifying competition authority to have been required, encouraged or approved by the other Party; or

(f) involve relief that requires or prohibits conduct in the territory of the other country.

3. Notification pursuant to paragraph 1 of this Article shall be given as promptly as possible when the competition authority of a Party becomes aware that enforcement activities of its Party may affect the important interests of the other Party, and in any event in accordance with paragraphs 4 and 5 of this Article.
4. Where notification is required pursuant to paragraph 1 of this Article with respect to mergers or acquisitions, such notification shall be given not later than:

(a) for the competition authorities of the United States of America, the time either one seeks information or documentary material concerning the proposed transaction pursuant to the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (15 U.S.C. 18a(e)), the Federal Trade Commission Act (15 U.S.C. 49, 57b-1) or the Antitrust Civil Process Act (15 U.S.C. 1312).

(b) for the competition authority of Japan, the earlier of

(i) the time it seeks production of documents, reports or other information concerning the proposed transaction pursuant to the Antimonopoly Law; or

(ii) the time it advises a party to the transaction that the transaction as originally proposed raises serious questions under the Antimonopoly Law; provided, however, that if at the time of such advice the transaction has not been publicly disclosed by a party to the transaction, notification shall be made as soon as possible after the time at which the transaction or proposed transaction is publicly disclosed by a party to the transaction.

5. Where notification is required pursuant to paragraph 1 of this Article with respect to matters other than mergers or acquisitions, notification shall be given as far in advance of the following actions as is practically possible:

(a) for the Government of the United States of America,

(i) the initiation of criminal proceedings;

(ii) the initiation of a civil or administrative action, including the seeking of a temporary restraining order or preliminary injunction;

(iii) the entry of a proposed consent decree or a proposed cease and desist order; and

(iv) the issuance of a business review or advisory opinion that will ultimately be made public by the competition authority.

(b) for the Government of Japan,

(i) the filing of a criminal accusation;

(ii) the filing of a complaint seeking an urgent injunction;

(iii) the issuance of a recommendation or the decision to initiate a hearing;

(iv) the issuance of a surcharge payment order when no prior recommendation with respect to the payer has been issued;

(v) the issuance of a reply to a prior consultation that will ultimately be made public by the competition authority; and

(vi) the issuance of a warning.

6. The competition authority of each Party shall also notify the competition authority of the other Party if it initiates a survey which the notifying competition authority considers may affect the important interests of the other Party.
7. The competition authority of each Party shall also notify the competition authority of the other Party whenever the notifying competition authority publicly participates, in connection with the competition laws or policy issues, in an administrative, regulatory or judicial proceeding in its country that is not initiated by the competition authority, if the notifying competition authority considers that the issue addressed may affect the important interests of the other Party. Such notification shall be made at the time of the participation or as soon thereafter as possible.
8. Each Party shall notify the other Party if it initiates a civil action in the courts of the other country against a private party for monetary damages or other relief based on a violation of the competition laws of the other country.
9. Notifications shall be sufficiently detailed to enable the notified competition authority to make an initial evaluation of the effect on its Party's important interests.

(a) The competition authority of each Party shall promptly notify the competition authority of the other Party of any amendment to the competition laws of its country.

(b) The competition authority of each Party shall provide the competition authority of the other Party with copies of its publicly-released guidelines, regulations or policy statements that it issues in relation to the competition laws of its country.

(c) The competition authority of each Party shall provide the competition authority of the other Party with copies of its proposed guidelines, regulations or policy statements in relation to the competition laws of its country that are made generally available to the public, and, when it provides the general public with opportunities to submit comments on such guidelines, regulations or policy statements, receive and pay due consideration to the comments submitted by the other Party prior to finalizing such guidelines, regulations or policy statements.

Article III

1. The competition authority of each Party shall render assistance to the competition authority of the other Party in its enforcement activities to the extent consistent with the laws and regulations of the country of the assisting Party and the important interests of the assisting Party, and within its reasonably available resources.
2. The competition authority of each Party shall, to the extent consistent with the laws and regulations of its country and the important interests of its Party:

(a) inform the competition authority of the other Party with respect to its enforcement activities involving anticompetitive activities that the informing competition authority considers may also have an adverse effect on competition within the territory of the other country;

(b) provide the competition authority of the other Party with any significant information, within its possession and that comes to its attention, about anticompetitive activities that the providing competition authority considers may be relevant to, or may warrant, enforcement activities by the competition authority of the other Party; and

(c) provide the competition authority of the other Party, upon request and in accordance with the provisions of this Agreement, with information within its possession that is relevant to the enforcement activities of the competition authority of the other Party.

Article IV

1. Where the competition authorities of both Parties are pursuing enforcement activities with regard to related matters, they shall consider coordination of their enforcement activities.
2. In considering whether particular enforcement activities should be coordinated, the competition authorities of the Parties should take into account the following factors, among others:

(a) the effect of such coordination on their ability to achieve the objectives of their enforcement activities;

(b) the relative abilities of the competition authorities of the Parties to obtain information necessary to conduct the enforcement activities;

(c) the extent to which the competition authority of either Party can secure effective relief against the anticompetitive activities involved;

(d) the possible reduction of cost to the Parties and to the persons subject to the enforcement activities; and

(e) the potential advantages of coordinated relief to the Parties and to the persons subject to the enforcement activities.

3. In any coordinated enforcement activity, the competition authority of each Party shall seek to conduct its enforcement activities with careful consideration to the objectives of the enforcement activities by the competition authority of the other Party.
4. Where the competition authorities of both Parties are pursuing enforcement activities with regard to related matters, the competition authority of each Party shall consider, upon request by the competition authority of the other Party and where consistent with the important interests of the requested Party, inquiring whether persons who have provided confidential information in connection with those enforcement activities will consent to the sharing of such information with the competition authority of the other Party.
5. Subject to appropriate notification to the competition authority of the other Party, the competition authority of either Party may, at any time, limit or terminate the coordination of enforcement activities and pursue their enforcement activities independently.

Article V

1. If the competition authority of a Party believes that anticompetitive activities carried out in the territory of the other country adversely affect the important interests of the former Party, such competition authority, taking into account the importance of avoiding conflicts regarding jurisdiction and taking into account that the competition authority of the other Party may be in a position to conduct more effective enforcement activities with regard to such anticompetitive activities, may request that the competition authority of the other Party initiate appropriate enforcement activities. The request shall be as specific as possible about the nature of the anticompetitive activities and their effect on the important interests of the Party of the requesting competition authority, and shall include an offer of such further information and other cooperation as the requesting competition authority is able to provide.
2. The requested competition authority shall carefully consider whether to initiate enforcement activities, or whether to expand ongoing enforcement activities, with respect to the anticompetitive activities identified in the request. The requested competition authority shall inform the requesting competition authority of its decision as soon as practically possible. If enforcement activities are initiated, the requested competition authority shall inform the requesting competition authority of their outcome and, to the extent possible, of significant interim developments.

Article VI

1. Each Party shall give careful consideration to the important interests of the other Party throughout all phases of its enforcement activities, including decisions regarding the initiation of enforcement activities, the scope of enforcement activities and the nature of penalties or relief sought in each case.
2. When either Party informs the other Party that specific enforcement activities by the latter Party may affect the former's important interests, the latter Party shall endeavor to provide timely notice of significant developments of such enforcement activities.
3. Where either Party considers that enforcement activities by a Party may adversely affect the important interests of the other Party, the Parties should consider the following factors, in addition to any other factor that may be relevant in the circumstances in seeking an appropriate accommodation of the competing interests:

(a) the relative significance to the anticompetitive activities of conduct or transactions occurring within the territory of the country of the enforcing Party as compared to conduct or transactions occurring within the territory of the other country;

(b) the relative impact of the anticompetitive activities on the important interests of the respective Parties;

(c) the presence or absence of evidence of an intention on the part of those engaged in the anticompetitive activities to affect consumers, suppliers, or competitors within the territory of the country of the Party conducting the enforcement activities;

(d) the extent to which the anticompetitive activities substantially lessencompetition in the market of each country;

(e) the degree of conflict or consistency between the enforcement activities by a Party and the laws of the other country, or the policies or important interests of the other Party;

(f) whether private persons, either natural or legal, will be placed under conflicting requirements by both Parties;

(g) the location of relevant assets and parties to the transaction;

(h) the degree to which effective penalties or relief can be secured by the enforcement activities of the Party against the anticompetitive activities; and

(i) the extent to which enforcement activities by the other Party with respect to the same persons, either natural or legal, would be affected.

Article VII

1. The Parties may hold, as necessary, consultations through the diplomatic channel on any matter which may arise in the implementation of this Agreement.
2. A request for consultations under this Article shall be communicated through the diplomatic channel.

Article VIII

1. The competition authorities of the Parties shall consult with each other, upon request of either Party's competition authority, on any matter which may arise in connection with this Agreement.
2. The competition authorities of the Parties shall meet at least once a year to:

(a) exchange information on their current enforcement efforts and priorities in relation to the competition laws of each country;

(b) exchange information on economic sectors of common interest;

(c) discuss policy changes that they are considering; and

(d) discuss other matters of mutual interest relating to the application of the competition laws of each country.

Article IX

1. (a) Information, other than publicly available information, communicated by a Party to the other Party pursuant to this Agreement shall only be used by the receiving Party for the purpose specified in Article 1, paragraph 1 of this Agreement, unlessthe Party providing the information has approved otherwise.

(b) Information, other than publicly available information, provided by a competition authority or a relevant law enforcement authority pursuant to this Agreement shall not be communicated to a third party or other authorities, unless the competition authority or the relevant law enforcement authority providing the information has approved otherwise.

2. Notwithstanding paragraph 1(b) of this Article, unless otherwise notified by the competition authority providing the information, the competition authority receiving the information communicated pursuant to this Agreement may provide the information to its Party's relevant law enforcement authorities, for the purpose of competition law enforcement, which may use such information under the conditions stipulated in Article X of this Agreement.
3. Each Party shall, consistent with the laws and regulations of its country, maintain the confidentiality of any information communicated to it in confidence by the other Party pursuant to this Agreement, unless the latter Party consents to the disclosure of such information.
4. Each Party may limit the information it communicates to the other Party when the latter Party is unable to give the assurance requested by the Party with respect to confidentiality or with respect to the limitations of purposes for which the information will be used.
5. Notwithstanding any other provision of this Agreement, neither Party is required to communicate information to the other Party if such communication is prohibited by the laws or regulations of the country of the Party possessing the information or such communication would be incompatible with its important interests.
6. This Article shall not preclude the use or disclosure of information to the extent that there is an obligation to do so under the laws and regulations of the country of the Party receiving the information. Such Party shall, wherever possible, give advance notice of any such use or disclosure to the Party which provided the information.

Article X

1. Information communicated by a Party to the other Party pursuant to this Agreement, except publicly available information, shall not be presented to a grand jury or to a court or a judge in criminal proceedings.
2. In the event that information communicated by a Party to the other Party pursuant to this Agreement, except publicly available information, is needed for presentation to a grand jury or to a court or a judge in criminal proceedings, that Party shall submit a request for such information to the other Party through the diplomatic channel or other channel established in accordance with the law of the requested Party. The requested Party will make, upon request, its best efforts to respond promptly to meet any legitimate deadlines indicated by the requesting Party.

Article XI

1. This Agreement shall be implemented by the Parties in accordance with the laws and regulations in force in each country and within the available resources of their respective competition authorities.
2. Detailed arrangements to implement this Agreement may be made between the competition authorities of the Parties.
3. Nothing in this Agreement shall prevent the Parties from seeking or providing assistance to one another pursuant to other bilateral or multilateral agreements or arrangements between the Parties.
4. Nothing in this Agreement shall be construed to prejudice the policy or legal position of either Party regarding any issue related to jurisdiction.
5. Nothing in this Agreement shall be construed to affect the rights and obligations of either Party under other international agreements or under its laws.

Article XII

Unless otherwise provided in this Agreement, communications under this Agreement may be directly carried out between the competition authorities of the Parties. Notifications under Article II (except paragraph 8) and requests under Article V, paragraph 1 of this Agreement, however, shall be confirmed in writing through the diplomatic channel. The confirmation shall be made as promptly as practically possible after the communication concerned between the competition authorities of the Parties.

Article XIII

1. This Agreement shall enter into force upon signature.
2. Either Party may terminate this Agreement by giving two months written notice to the other Party through diplomatic channel.
3. The Parties shall review the operation of this Agreement not more than five years from the date of its entry into force.

IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective Governments, have signed this Agreement.
DONE at Washington, this seventh day of October, 1999, in duplicate, in the English and Japanese languages, both texts being equally authentic

FREE TRADE AGREEMENT BETWEEN THE GOVERNMENT OF CANADA AND THE
 GOVERNMENT OF THE REPUBLIC OF COSTA RICA ¹¹
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 XI.4, 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 XIII.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 anticompetitive 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.

MEMORANDUM OF UNDERSTANDING BETWEEN THE COMMISSIONER OF
COMPETITION (CANADA) AND THE FISCAL NACIONAL ECONOMICO (CHILE)
REGARDING THE APPLICATION OF THEIR COMPETITION LAWS ¹²

The Commissioner of Competition, Competition Bureau, of the Government of Canada, and the Fiscal Nacional Economico, of the Government of the Republic of Chile (hereinafter referred to as the "Parties");

Having regard to Chapter J of the Canada-Chile Free Trade Agreement and the importance of cooperation and coordination among competition authorities to further effective competition law enforcement in the free trade area; and

Recognizing that cooperation in enforcement activities and the coordination of such activities may, in certain cases, result in a more effective resolution of the Parties' respective competition law concerns than would be attained through independent action;

Understand as follows:

I. PURPOSE AND DEFINITIONS
1. The purpose of this Memorandum is to promote cooperation and coordination between the Parties and to reduce the effect of potential differences in the application of competition law in Canada and Chile;

2. In this Memorandum, these terms will have the following definitions:

(a) "Anticompetitive activity(ies)" means any conduct or transaction that may be subject to penalties or other relief under the competition law administered and enforced by the Parties;
(b) "Competition law(s)" means

(i) for the Commissioner of Competition, the Competition Act, R.S.C. 1985, c. C-34, except sections 52 through 60 and Part VII.1;
(ii) for Fiscal Nacional Economico, Decree Law-211 of 1973;

as well as any amendments thereto, and such other laws or regulations as the Parties may from time to time agree in writing to be a "competition law" for the purposes of this Memorandum; and

(c) “Enforcement activity(ies)" means any investigation or proceeding conducted by a Party in relation to the competition law it administers and enforces; and.(d) “Territory” means the territory in which a Party has jurisdiction.

3. Each Party will promptly notify the other of any amendments to its competition law.

II NOTIFICATION
1. Subject to Article VI, each Party will notify the other Party with respect to its enforcement activities which may affect the other Party’s interests in the application of its competition law, including those that:

a. are relevant to the enforcement activities of the other Party;
b. involve anticompetitive activities, other than mergers or acquisitions, carried out in whole or in part in the other Party’s territory, except where those activities are insubstantial;
c. involve mergers or acquisitions in which one or more of the parties to the transaction, or a company controlling one or more of the parties to the transaction, is a company incorporated or organized under the laws of the other
Party’s territory;
d. involve remedies that expressly require or prohibit conduct in the other Party’s territory or are otherwise directed at conduct in that territory;
e. involve the seeking of information located in the other Party’s territory, whether by personal visit by officials of a Party or otherwise, except with respect to telephone contacts with a person in the other Party’s territory where that person is not the subject of investigation and the contact seeks only an oral response on a voluntary basis.

2. Notification will ordinarily be given as soon as it becomes evident that notifiable circumstances are present.

3. Once a particular matter has been notified, subsequent notifications on that matter need not be made unless the notifying Party becomes aware of new issues bearing on the interests of the other Party in the application of its competition law, or unless the notified Party requests otherwise.

4. Notifications will include the nature of the anticompetitive activities under investigation and the competition law provisions concerned and will be sufficiently detailed to enable the notified Party to make an initial evaluation of the effect of the enforcement activities on its interests in the application of its competition law..

III. COOPERATION AND COORDINATION
1. It is in the Parties’ common interest to cooperate and share information where appropriate and practicable.

2. Where both Parties are pursuing enforcement activities with regard to the same or related matters, they will endeavour to coordinate their enforcement activities where appropriate and practicable.

IV. AVOIDANCE OF CONFLICTS
1. It is in the Parties’ common interest to minimize any potentially adverse effects of one Party’s enforcement activities on the other Party’s interests in the application of its competition law.

2. Where one Party informs the other that a specific enforcement activity by the second Party may affect the first Party’s interests in the application of its competition law, the second Party will endeavour to provide timely notice of significant developments relating to those interests and an opportunity to provide input regarding any proposed penalty or remedy.

3. Any questions arising out of this Memorandum will be addressed in as timely and practicable a manner as circumstances permit.

V. MEETINGS
Officials of the Parties will meet periodically, as necessary, to:
a. exchange information on their enforcement efforts and priorities in relation to competition law;
b. exchange information on economic sectors of common interest;
c. discuss competition policy changes under consideration;
d. discuss other matters of mutual interest relating to the application of their competition laws or the operation of this Memorandum;
and
e. discuss the possibility of negotiating an agreement between Canada and Chile regarding the application of their competition laws...

VI. EXISTING LAWS AND CONFIDENTIALITY OF INFORMATION
1. Nothing in this Memorandum will require a Party to take any action, or to refrain from acting, in a manner inconsistent with existing law, or will require any change in the law of Canada or Chile.

2. Notwithstanding any other provision in this Memorandum, neither Party is required to communicate information to the other Party if such communication would be incompatible with the first Party’s interests in the application of its competition law. No information will be exchanged pursuant to this Memorandum which could not have been exchanged in the absence of this Memorandum.

3. The degree to which either Party communicates information to the other pursuant to this Memorandum may be subject to, and dependent upon, the acceptability of the assurances given by the other Party with respect to confidentiality and with respect to the purposes for which the information will be used.

4. Unless otherwise agreed by the Parties, each Party will, to the fullest extent possible, maintain the confidentiality of any information communicated to it in confidence by the other Party. Each Party will oppose, to the fullest extent possible, any request by a third party for communication of such confidential information, unless the Party providing the confidential information consents in writing to its communication.

VII. COMMUNICATIONS UNDER THIS MEMORANDUM
Communications under this Memorandum will be carried out by direct communication between the Parties. Each Party may designate a communications authority, as notified in writing to the other Party.

VIII. ENTRY INTO FORCE AND TERMINATION
1. This Memorandum shall enter into force upon signature of the Parties.

2. This Memorandum will remain in force until 60 days after the date on which either Party notifies the other in writing that it wishes to terminate, or until the time of the entry into force of an agreement between Canada and Chile regarding the application of their competition laws..

IN WITNESS WHEREOF, the undersigned, have signed this Memorandum.

DONE at Santiago, in duplicate, this 17 th day of December, 2001, in the English, French and Spanish languages, each text being equally authentic.

 

For the Commissioner of Competition, Competition Bureau, of the Government of Canada

For the Fiscal Nacional Economico  of the Government of the Republic of Chile

¹ Those provisions are found in Chapter XV of the North America Free Trade Agreement (NAFTA), in the 1991 Decision 285 of the Andean Community, in the 1996 Protocol on the Protection of Competition of the Common Market of the Southern Cone (MERCOSUR), in Protocol No. 8 of the Caribbean Community and Common Market (CARICOM), in Chapter XVI of the Treaty on Free Trade of the Group of Three between the Republic of Colombia, the United Mexican States and the Republic of Venezuela (G-3), in the Agreement between the Government of the United States of America and the Government of Canada Regarding the Application of Their Competition and Deceptive Marketing Practices Laws, in the Agreement between the United States of America and Brazil relating to the cooperation between their authorities for the Protection of Competition, in the Agreement between the United States of America and Mexico on the Application of their Competition Laws, in Chapter J of the Canada-Chile Free Trade Agreement, in Chapter XIV of the Free Trade Agreement between Mexico and Chile, in the Economic Complementation Agreement No.22 between Bolivia and Chile, in Chapter XV of the Free Trade Agreement between the Central American Common Market (CACM) and Chile, in Chapter IV of the Free Trade and Preferential Exchange Agreement between Panama and each of the member countries of the Central American Common Market (CACM), in Chapter XV of the Free Trade Agreement between the CACM and the Dominican Republic, in Section IV of the Free Trade Agreement between the European Union and Mexico, in the Agreement between the United States of America and Japan Relating to the Cooperation on Anti-Competitive Activities, in the Agreement on the Application of the Competition Laws between the United States of America and Israel, in the Agreement between the European Community and the United States of America on the Observance of the Principles of Positive Courtesy in the Application of their Competition Rules, in the Anti-Monopolies Agreement between the United States of America and Germany, in the Agreement between the United States of America and Australia relating to Cooperation in the Field of Monopolies, the Application of their Competition Laws, in the Agreement between the European Communities and the Government of Canada regarding the Application of their Competition Laws, in Chapter XI in the Free Trade Agreement between Canada and Costa Rica, in the Cooperation Agreement on Competition Law Enforcement between the Governments of Canada and Mexico, and in Memorandum of Understanding between the Commissioner of Competition (Canada) and the Fiscal Nacional Economico (Chile) regarding the Application of their Competition Laws.