ARTICLE I
MOST
FAVORED NATION AND NONDISCRIMINATORY TREATMENT
1. Each
Party shall accord unconditionally to products originating in or
exported to the territory of the other Party treatment no less favorable
than that accorded to like products originating in or exported to the
territory of any third country in all matters relating to:
(a)
customs duties and charges of any kind imposed on or in connection with
importation or exportation, including the method of levying such duties
and charges;
(b)
methods of payment for imports and exports, and the international
transfer of such payments;
(c) rules
and formalities in connection with importation and exportation,
including those relating to customs clearance, transit, warehouses and
transshipment;
(d) taxes
and other internal charges of any kind applied directly or indirectly to
imported products; and
(e) laws,
regulations and requirements affecting the sale, offering for sale,
purchase, transportation, distribution, storage and use of products in
the domestic market.
2. Each
Party shall accord to products originating in or exported to the
territory of the other Party nondiscriminatory treatment with respect to
the application of quantitative restrictions and the granting of
licenses.
3. Each
Party shall accord to imports of products and services originating in
the territory of the other Party nondiscriminatory treatment with
respect to the allocation of and access to the currency needed to pay
for such imports.
4. The
provisions of paragraphs 1 and 2 shall not apply to:
(a)
advantages accorded by either Party by virtue of such Party's full
membership in a customs union or free trade area;
(b)
advantages accorded to adjacent countries for the facilitation of
frontier traffic;
(c)
actions by either Party which are required or permitted by the General
Agreement on Tariffs and Trade (the"GATT") (or by any joint
action or decision of the Contracting Parties to the GATT) during such
time as such Party is a Contracting Party to the GATT; and special
advantages accorded by virtue of the GATT; and
(d)
actions taken under Article XI (Market Disruption) of this Agreement.
5. The
provisions of paragraph 2 of this Article shall not apply to Mongolian
exports of textiles and textile products.
ARTICLE
II
MARKET
ACCESS FOR PRODUCTS AND SERVICES
1. Each
Party shall administer all tariff and nontariff measures affecting trade
in a manner which affords, with respect to both third country and
domestic competitors, meaningful competitive opportunities for products
and services of the other Party.
2.
Accordingly, neither Party shall impose, directly or indirectly, on the
products of the other Party imported into its territory, internal taxes
or charges of any kind in excess of those applied, directly or
indirectly, to like domestic products.
3. Each
Party shall accord to products originating in the territory of the other
Party treatment no less favorable than that accorded to like domestic
products in respect of all laws, regulations and requirements affecting
their internal sale, offering for sale, purchase, transportation,
distribution, storage or use.
4. The
charges and measures described in paragraphs 2 and 3 of this Article
should not be applied to imported or domestic products so as to afford
protection to domestic production.
5. The
Parties shall ensure that technical regulations and standards are not
prepared, adopted or applied with a view to creating obstacles to
international trade or to protect domestic production. Furthermore, each
Party shall accord products imported from the territory of the other
Party treatment no less favorable than that accorded to like domestic
products and to like products originating in any third country in
relation to such technical regulations or standards, including
conformity testing and certification.
6. The
Government of the Mongolian People's Republic shall accede to the
Convention Establishing the Customs Cooperation Council and the
International Convention oh the Harmonized Commodity Description and
Coding System, and shall take all necessary measures to implement entry
into force of such Conventions with respect to the Mongolian People's
Republic.
ARTICLE
III
GENERAL
OBLIGATIONS WITH RESPECT TO TRADE
1. The
Parties agree to maintain a satisfactory balance of market access
opportunities, including through concessions in trade in products and
services and through the satisfactory reciprocation of reductions in
tariffs and nontariff barriers to trade resulting from multilateral
negotiations.
2. Trade
in products and services shall be effected by contracts between
nationals and companies of the United States and nationals and
organizations of the Mongolian People's Republic concluded on the basis
of nondiscrimination and in the exercise of their independent commercial
judgment and on the basis of customary commercial considerations such as
price, quality, availability, delivery, and terms of payment.
3.
Neither Party shall require or encourage nationals or companies of the
United States or nationals or organizations of the Mongolian People's
Republic to engage in barter or countertrade transactions. Nevertheless,
where nationals, companies or organizations decide to resort to barter
or countertrade operations, the Parties will encourage them to furnish
to each other all necessary information to facilitate the transaction.
ARTICLE
IV
EXPANSION
AND PROMOTION OF TRADE
1. The
Parties affirm their desire to expand trade in products and services
consistent with the terms of this Agreement. They shall take appropriate
measures to encourage and facilitate the exchange of goods and services
and to secure favorable conditions for long-term development of trade
relations between their respective nationals, companies and
organizations.
2. The
Parties shall take appropriate measures to encourage the expansion of
commercial contacts with a view to increasing trade. In this regard, the
Government of the Mongolian People's Republic expects that, during the
term of this Agreement, nationals and organizations of the Mongolian
People's Republic shall increase their orders in the United States for
products and services, while the Government of the United States
anticipates that the effect of this Agreement shall be to encourage
increased purchases by nationals and companies of the United States of
products and services from the Mongolian People's Republic. Toward this
end, the Parties shall publicize this Agreement and ensure that it is
made available to all interested parties.
3. Each
Party shall encourage and facilitate the holding of trade promotional
events such as fairs, exhibitions, missions and seminars in its
territory and in the territory of the other Party. Similarly, each Party
shall encourage and facilitate the participation of its respective
nationals, companies and organizations in such events. Subject to the
laws in force within their respective territories, the Parties agree to
allow the import and re-export on a duty free basis of all articles for
use in such events, provided that such articles are not sold or
otherwise transferred.
ARTICLE V
GOVERNMENT COMMERCIAL OFFICES
Upon
agreement of the Parties, each Party may establish government commercial
offices as integral parts of its diplomatic mission in the territory of
the other Party.
ARTICLE
VI
BUSINESS
FACILITATION
1. Each
Party shall afford commercial representations of the other Party fair
and equitable treatment with respect to the conduct of their operations.
2.
Subject to its laws and procedures governing immigration, each Party
shall permit the establishment within its territory of commercial
representations of nationals, companies and organizations of the other
Party and shall accord such representations treatment at least as
favorable as that accorded to commercial representations of nationals,
companies and organizations of third countries.
3.
Subject to its laws and procedures governing immigration, each Party
shall permit such commercial representations established in its
territory to hire directly employees who are nationals of either Party
or of third countries and to compensate such employees on terms and in a
currency that is mutually agreed between the parties, consistent with
such Party's minimum wage laws.
4. Each
Party shall permit commercial representations of the other Party to
import and use in accordance with normal commercial practices, office
and other equipment, such as typewriters, photocopiers computers and
telefax machines in connection with the conduct of their activities in
the territory of such Party.
5. Each
Party shall permit, on a nondiscriminatory basis and at
nondiscriminatory prices (where such prices are set or controlled by the
government), commercial representations of -the other Party access
to and use of office space and living accommodations, whether or not
designated for use by foreigners. The terms and conditions of such
access and use shall in no event be on a basis less favorable than that
accorded to commercial representations of nationals, companies and
organizations of third countries.
6.
Subject to its laws and procedures governing immigration, each Party
shall permit nationals, companies and organizations of the other Party
to engage agents, consultants and distributors of either Party and of
third countries on prices and terms mutually agreed between the parties.
7.
Subject to its immigration laws and procedures, each Party shall permit
nationals, companies and organizations of the other Party to serve as
agents, consultants and distributors of nationals, companies and
organizations of either Party and of third countries on prices and terms
mutually agreed between the parties.
8. Each
Party shall permit nationals, companies and organizations of the other
Party to advertise their products and services (a) through direct
agreement with the advertising media, including television, radio, print
and billboard, and (b) by direct mail, including the use of enclosed
envelopes and cards preaddressed to that national, company or
organization.
9. Each
Party shall encourage direct contact, and permit direct sales, between
nationals, companies and organizations of the other Party and end-users
and other customers of their goods and services, and with agencies and
organizations whose decisions will affect potential sales.
10. Each
Party shall permit nationals, companies and organizations of the other
Party to conduct market studies, either directly or by contract, within
its territory. To facilitate the conduct of market research, each Party
shall upon request make available non-confidential, non-proprietary
information within its possession to nationals, companies and
organizations of the other Party engaged in such efforts.
11. Each
Party shall provide nondiscriminatory access to governmentally-provided
products and services, including public utilities, to nationals,
companies and organizations of the other Party in connection with the
operation of their commercial representations.
12. Each
Party shall permit commercial representations to stock an adequate
supply of samples and replacement parts for after sales service on a
non-commercial basis.
13.
Neither Party shall impose measures which unreasonably impair
contractual or property rights or other interests acquired within its
territory by nationals, companies and organizations of the other Party.
ARTICLE
VII
TRANSPARENCY
1. Each
Party shall make available publicly on a timely basis all laws and
regulations related to commercial activity, including trade, investment
taxation, banking, insurance and other financial services, transport and
labor. Each Party shall also make such information available in reading
rooms in its own capital and in the capital of the other Party.
2. Each
Party shall provide nationals, companies and organizations of the other
Party with access to available non-confidential, non-proprietary data on
the national economy and individual sectors, including information on
foreign trade.
3. Each
Party shall allow the other Party the opportunity to comment on the
formulation of rules and regulations which affect the conduct of
business activities.
ARTICLE
VIII
FINANCIAL
PROVISIONS RELATING TO TRADE IN PRODUCTS AND SERVICES
1. Unless
otherwise agreed between the parties to individual transactions, all
commercial transactions between nationals,companies and organizations of
the Parties shall be made in United States dollars or any other currency
that may be designated from time to time by the International Monetary
Fund as being a freely usable currency.
2.
Neither Party shall restrict the export from its territory of
convertible currencies or deposits, or instruments representative
thereof, obtained in connection with trade in products and services by
nationals, companies and organizations of the other Party.
3.
Nationals, companies and organizations of a Party holding currency of
the other Party received in an authorized manner may deposit such
currency in financial institutions located in the territory of the other
Party and may maintain and use such currency for local expenses.
4.
Without derogation from paragraphs 2 or 3 of this Article, in connection
with trade in products and services, each Party shall grant to
nationals, companies and organizations of the other Party the better of
most-favored-nation or national treatment with respect to:
(a)
opening and maintaining accounts, in both local and foreign currency,
and having access to funds deposited, in financial institutions located
in the territory of the Party;
(b)
payments, remittances and transfers of convertible currencies, or
financial instruments representative thereof, between the territories of
the two Parties, as well as between the territory of that Party and that
of any third country;
(c) rates
of exchange and related matters, including access to freely usable
currencies, such as through currency auctions; and
(d) the
receipt and use of local currency.
ARTICLE
IX
PROTECTION OF INTELLECTUAL PROPERTY RIGHTS
1. Each
Party shall provide adequate and effective protection and enforcement
for patents, trademarks, copyrights, trade secrets, industrial designs
and layout designs for integrated circuits. Each Party reaffirms its
commitments to those international agreements relating to intellectual
property to which both Parties are signatories. Specifically, each Party
reaffirms the commitments made with respect to industrial property in
the Paris Convention for the Protection of Industrial Property of March
29, 1883, as revised at Stockholm on July 14, 1967.
2. To
provide adequate and effective protection and enforcement of
intellectual property rights each Party shall, inter alia
observe the following commitments:
(a)
Copyright and related rights
(i) Each
Party shall adhere to the Berne Convention for the Protection of
Literary and Artistic Works (Paris 1971) ("Berne Convention").
In addition, it shall comply with the provisions set forth below.
(ii)
Works protected by copyright means any original, intellectual creative
work of literary or artistic character, irrespective of their value,
their literary or artistic merits or their purpose, and include, inter
alia, the following:
(1) all
types of computer programs;
(2)
collections or compilations of protected or unprotected material or data
whether in print, machine readable or any other medium, including
databases, which shall be protected if they constitute intellectual
creation by reason of the selection, coordination, or arrangement of
their contents.
(iii) The
rights protected pursuant to paragraph 2
(a) this Article include, inter alia, the following:
(1) the
right to import or authorize the importation into the territory of the
Party of lawfully made copies of the work as well as the right to
prevent the importation into the territory of the Party of copies of the
work made without the authorization of the right-holder;
(2) the
right to make the first public distribution of the original or each
authorized copy of a work by sale, rental, or otherwise; and
(3) the
right to make a public communication of a work (e.g., to
perform, display, project, exhibit, broadcast, transmit, or retransmit a
work).
(iv) Each
Party shall extend the protection afforded under this section to authors
(as defined under the Berne Convention) of the other Party, whether they
are natural persons or, where the other Party's domestic law so
provides, companies and organizations, and to their successors in title.
(v)
Protected rights under paragraph 2(a) of this Article shall be freely
and separately exploitable and transferable.
(vi) Each
Party shall confine any limitations or exceptions to the rights provided
under paragraph 2(a) of this Article (including any limitations or
exceptions that restrict such rights to "public" activity) to
clearly and carefully defined special cases which do not impair an
actual or potential market for or the value of a protected work.
(vii) If
either Party has afforded no protection to works of foreign origin, it
shall provide protections consistent with this section, for all works of
the other Party that are not in the public domain in their country of
origin at the time of entry into force of this Agreement in its
territory.
(viii)
Translation and reproduction licensing systems permitted in the Appendix
to the Berne Convention:
(1) shall
not be established where legitimate local needs are being met by
voluntary actions of copyright holders or could-be met by such action
but for intervening factors outside the copyright holder's; and
(2) shall
provide an effective opportunity for the copyright holder to be heard
prior to the grant of any such licenses.
(ix) Any
compulsory or non-voluntary license (or any restriction of exclusive
rights to a right of remuneration) shall provide means to ensure payment
and remittance of royalties at a level consistent with what would be
negotiated on a voluntary basis.
(x) The
Parties shall, at a minimum, extend to producers of sound recordings the
exclusive rights to do or to authorize the following:
(1) to
reproduce the recording by any means or process, in whole or in part;
(2) to
exercise the importation and exclusive distribution and rental rights
provided in paragraph (iii) (1) and (2) of this section.
(xi) The
provisions of paragraphs iv, v, and vii of this section shall apply mutatis
mutandis to the producers of sound recordings.
(xii)
Paragraph viii of this section shall apply mutatis mutandis to
sound recordings.
(xiii)
Each Party shall:
(1)
adhere to the Geneva Convention for the Protection of Producers of
Phongrams and protect sound recordings first fixed or published in the
territory of the other Party;
(2)
protect sound recordings for a term of at least 50 years from
publication;
(3)
protect sound recordings published in the territory of a Party within
thirty days of their publication elsewhere and recordings produced by a
national, company or organization of a Party; and
(4) grant
the right to make the first public distribution of the original or each
authorized sound recording by sales rental, or otherwise except that the
first sale of the original or such sound recording shall not exhaust the
rental or importation right therein (the "rental right" shall
mean the right to authorize or prohibit the disposal of the possession
of the original or copies for direct or indirect commercial advantage).
(xiv) The
acquisition and validity of intellectual property rights in sound
recordings shall not be subject to any formalities and protection shall
arise automatically upon creation of the sound recording.
(b)
Trademarks
(i)
Protectable Subject Matter
(1)
Trademarks shall consist of at least any sign, words, including personal
names, designs, letters, numerals, colors, the shape of goods or of
their packaging, provided that the mark is capable of distinguishing the
goods or services of one national, company or organization from those of
other nationals, compares or organizations.
(2) The
term "trademarks" shall include service marks, collective and
certification marks.
(ii)
Acquisition of Rights
(1) A
trademark right may be acquired by registration or by use. A system for
the registration of trademarks shall be provided. Use of a trademark may
be required as a prerequisite for registration.
(2) Each
Party shall publish each trademark either before it is registered or
promptly after it is registered and shall afford other parties a
reasonable opportunity to petition to cancel the registration. In
addition, each Party may afford an opportunity for the other Party to
oppose the registration of a trademark.
(3) The
nature of the goods or services to which a trademark is to be applied
shall in no case form an obstacle to registration of the trademark.
(iii)
Rights Conferred
(1) The
owner of a registered trademark shall have exclusive rights therein. He
shall be entitled to prevent all third parties not having his consent
from using in commerce identical or similar signs for goods or services
which are identical or similar to those in respect of which the
trademark is protected, where such use would result in a likelihood of
confusion.
(2) Each
Party shall refuse to register or shall cancel the registration and
prohibit use of a trademark likely to cause confusion with a trademark
of another which is considered to be well-known. A Party may not require
that the reputation of the trademark extend beyond the sector of the
public which normally deals with the relevant goods or services.
(3) The
owner of a trademark shall be entitled to take action against any
unauthorized use which constitutes an act of unfair competition or
passing off.
(iv) Term
of Protection
The
registration of a trademark shall be indefinitely renewable for terms of
no less than 10 years when conditions for renewal have been met. Initial
registration of a trademark shall be for a term of at least 10 years.
(v)
Requirement of Use
(1) If
use of a registered mark is required to maintain trademark rights, the
registration may be canceled only after an uninterrupted period of at
least two years of non-use, unless legitimate reasons for non-use exist.
Use of the trademark with the consent of the owner shall be recognized
as use of the trademark for the purpose of maintaining the registration.
(2)
Legitimate reasons for non-use shall include non-use due to
circumstances arising independently of the will of the trademark holder
(such as import restrictions on or other government requirements for
products protected by the trademark) which constitute an obstacle to the
use of the mark.
(vi)
Other Requirements
The use
of a trademark in commerce shall not 'be encumbered by special
requirements, such as use which reduces the function of a trademark as
an indication of source or use with another trademark.
(vii)
Compulsory Licensing
Compulsory licensing of trademarks shall not be permitted.
(viii)
Transfer
Trademark
registrations may be transferred.
(c)
Patents
(i)
Patentable Subject Matter
Patents
shall be granted for all inventions, whether they concern products or
processes, in all fields of technology, with the exception of any
invention or discovery which is useful solely in the utilization of
special nuclear material or atomic energy in an atomic weapon.
(ii)
Rights Conferred
(1) A
patent shall confer the right to prevent others not having the patent
owner's consent from making, using, or selling the subject matter of the
patent. In the case of a patented process, the patent confers the right
to prevent others not having consent from using that process and from
using, selling, or importing at least the product obtained directly by
that process.
(2) Where
the subject matter of a patent is a process for obtaining a product,
each Party shall provide that the burden of establishing that an alleged
infringing product was not made by the process shall be on the alleged
infringer at least in one of the following situations:
(A) the
product is new, or
(B) a
substantial likelihood exists that the product was made by the process
and the patent owner has been unable through reasonable efforts to
determine the process actually used. In gathering and evaluation of
evidence to the contrary, the legitimate interests of the defendant in
protecting his manufacturing and business secrets shall be taken into
account.
(iii)
Term of Protection
The term
of protection shall be at least 20 years from the date of filing of the
patent application or 17 years from the date of grant of the patent.
Each Party is encouraged to extend the term of patent protection, in
appropriate cases, to compensate for delays caused by regulatory
approval processes.
(iv)
Transitional Protection
A Party
shall provide transitional protection for products embodying subject
matter deemed to be unpatentable under its patent law prior to its
implementation of this Agreement, where the following conditions are
satisfied:
(1) the
subject matter to which the product relates will become patentable after
implementation of this Agreement;
(2) a
patent has been issued for the product by the other Party prior to the
entry into force of this Agreement; and
(3) the
product has not been marketed in the territory of the Party providing
such transitional protection.
The owner
of a patent for a product satisfying the conditions set forth above
shall have the right to submit a copy of the patent to the Party
providing transitional protection. Such Party shall limit the right to
make, use, or sell the product in its territory to such owner for a term
to expire with that of the patent submitted.
(v)
Compulsory Licenses
Each
Party may limit the patent owner's exclusive rights through compulsory
licenses only to remedy an adjudicated violation of competition laws or
to address, only during its existence, a declared national emergency.
Where the law of a Party allows for the grant of compulsory licenses,
such licenses shall be granted in a manner which minimizes distortions
of trader and the following provisions shall be respected:
(1)
Compulsory licenses shall be non-exclusive and non-assignable except
with that part of the enterprise or goodwill which exploits such
license.
(2) The
payment of remuneration to the patent owner adequate to compensate the
patent owner fully for the license shall be required, except for
compulsory licenses to remedy adjudicated violations of competition law.
(3) Each
case involving the possible grant of a compulsory license shall be
considered on its individual merits.
(4) Any
compulsory license shall be revoked when the circumstances which led to
its granting cease to exist, taking into account the legitimate
interests of the patent owner and of the licensee. The continued
existence of these circumstances shall be reviewed upon request of the
patent owner.
(5)
Decisions to grant or to continue compulsory licenses and the
compensation provided for compulsory licenses shall be subject to review
by a distinct higher authority.
(d)
Layout-Designs of Semiconductor Chips
(i)
Subject Matter for Protection
(1) Each
Party shall provide protection for original layout-designs incorporated
in a semiconductor chip however the layout-design might be fixed or
encoded*
(2) Each
Party may condition protection on fixation or registration of the
layout-designs. If registration is required, applicants shall be given
at least two years from first commercial exploitation of the
layout-design in which to apply. A Party which requires deposits of
identifying material or other material related to the layout-design
shall not require applicants to disclose confidential or proprietary
information unless it is essential to allow identification of the
layout-design.
(ii)
Rights Acquired
(1) Each
Party shall provide to owners of rights in integrated circuit lay-out
designs of the other Party the exclusive right to do or to authorize the
following:
(A) to
reproduce the layout-design;
(B) to
incorporate the layout-design in semiconductor chip; and
(C) to
import or distribute a semiconductor chip incorporating the
layout-design and products including such chips.
(2) The
conditions set out in paragraph (c)(v)
of this Article shall apply, mutatis mutandis, to the grant of
any compulsory licenses for layout-designs.
(3)
Neither Party is required to extend protection to layout-designs that
are commonplace in the industry at the time of their creation or to
layout-designs that are exclusively dictated by the functions of the
circuit to which they apply.
(4) Each
Party may exempt the following from liability under its law:
(A)
reproduction of a layout-design for purposes of teachings analysis, or
evaluation in the course of preparation of a layout design that is
itself original;
(B)
importation and distribution of semiconductor chips incorporating a
protected layout-design, which were sold by or with the consent of the
owner of the layout-design; and
(C)
importation or distribution up to the point of notice of a semiconductor
chip incorporating a protected layout-design and products incorporating
such chips by a person who establishes that he did not know, and had no
reasonable grounds to believe, that the layout design was protected,
provided that, with respect to stock on hand or purchased at the time
notice is received, such person may import or distribute only such stock
but is liable for a reasonable royalty on the sale of each item after
notice is received.
(iii)
Term of Protection
The term
of protection for the lay-out design shall extend for at least ten years
from the date of first commercial exploitation or the date of
registration of the design, if required, whichever is earlier.
e)
Industrial Designs and Models
(i) Each
Party shall provide, at a minimum, protection for industrial designs
which are new, original, ornamental and non-obvious. Each Party may
condition such protection on registration or other formality. The term
of protection of such designs shall extend for at least ten years.
(ii) Each
Party shall provide to the owner of a protected design the right to
prevent others from making, copying, using, or selling that industrial
design.
(iii)
Neither Party shall issue Compulsory licenses for industrial designs
except to remedy adjudicated violations of competition law to which the
conditions set out in paragraph (c) (v) of this Article shall apply,
mutatis mutandis.
(f) Acts
Contrary to Honest Commercial Practices and the Protection of Trade
Secrets
(i) In
the course of ensuring effective protection against. unfair competition
as provided for in Article 10 bis of the Paris Convention, each Party
shall provide in its domestic law and practice the legal means for
nationals, companies and organizations to prevent trade secrets from
being disclosed to, acquired by, or used by others without the consent
of the trade secret owner in a manner contrary to honest commercial
practices insofar as such information:
(1) is
not, as a body or in the precise configuration and assembly of its
components, generally known or readily ascertainable;
(2) has
actual or potential commercial value because it is not generally known
or readily ascertainable; and
(3) has
been subject to reasonable steps under the circumstances to keep it
secret.
(ii)
Neither Party shall limit the duration of protection for trade secrets
so long as the conditions in paragraph 2(f)(i) of this Article exist.
(iii)
Licensing
Neither
Party shall discourage or impede voluntary licensing of trade secrets by
imposing excessive or discriminatory conditions on such licenses or
conditions which dilute the value of trade secrets.
(iv)
Government Use
(1) A
Party which requires that trade secrets be submitted to carry out
governmental functions, shall not use the trade secrets for the
commercial or competitive benefit of the government or of any person
other than the owner of the trade secret except with the trade secret
owner's consent, on payment of the reasonable value of the use, or if a
reasonable period of exclusive use is given the owner of the trade
secret.
(2) Each
Party may disclose trade secrets to third parties, only with the trade
secret owner's consent or to the degree required to carry out necessary
government functions. Wherever practicable, owners of trade secrets
shall be given an opportunity to enter into confidentiality agreements
with any nongovernment entity to which the Party is disclosing trade
secrets to carry out necessary government functions.
(3) Each
Party may require owners of trade secrets to disclose their trade
secrets to third parties to protect human health or safety or to protect
the environment only when the trade secret owner is given an opportunity
to enter into confidentiality agreements with any non-government entity
receiving the trade secrets to prevent further disclosure or use of the
trade secret.
(g)
Enforcement of Intellectual Property Rights
(i) Each
Party shall protect intellectual property rights covered by this Article
means of civil law, criminal law, or administrative law or a combination
thereof in conformity with the provisions below. Each Party shall
provide effective procedures, internally and at the border, to protect
these intellectual property rights against any act of infringement and
effective remedies to stop and prevent infringements and to effectively
deter further infringements. These procedures shall be applied in such a
manner as to avoid the creation of obstacles to legitimate trade and
provide for safeguards against abuse.
(ii)
Procedures concerning the enforcement of intellectual property rights
shall be fair and equitable.
(iii)
Decisions On the merits of a case shall, as a general rule, be in
writing and reasoned. They shall be made known at least to the parties
to the dispute without undue delay.
(iv) Each
Party shall provide an opportunity fox judicial review of final
administrative decisions on the merits of an action concerning the
protection of an intellectual property right. Subject to jurisdictional
provisions in national laws concerning the importance of a case, an
opportunity for judicial review of the legal aspects of initial judicial
decisions on the merits of a case concerning the protection of an
intellectual property right shall also be provided.
(v)
Remedies against a Party
Notwithstanding the other provisions of this Article, when a Party is
sued for infringement of an intellectual property right as a result of
the use of that right by or for the government, the Party may limit
remedies against the government to payment of full compensation to the
right-holder.
3. Each
Party agrees to submit for enactment no later than December 31, 1992 the
legislation necessary to carry out the obligations of this Article and
to exert its best efforts to enact and implement this legislation by
that date.
4. For
purposes of this Article:
(a) "right-holder,"
means the right-holder himself, any other natural or legal persons
authorized by him who are exclusive licensees of the right, or other
authorized persons, including federations and associations, having legal
standing under domestic law to assert such rights; and
(b) "A
manner contrary to honest commercial practice" is understood to
encompass, inter alia, practices such as theft, bribery, breach
of contract, inducement to breach electronic and other forms of
commercial espionage, and includes the acquisition of trade secrets by
third parties who knew, or had reasonable grounds to know, that such
practices were involved in the acquisition.
ARTICLE X
AREAS FOR
FURTHER ECONOMIC AND TECHNICAL COOPERATION
1. For
the purpose of further developing bilateral trade and providing for a
steady increase in the exchange of products and services, both Parties
shall strive to achieve mutually acceptable agreements on taxation and
investment issues, including the repatriation of profits and transfer of
capital.
2. The
Parties shall take appropriate steps to foster economic and technical
cooperation on as broad a base as possible in all fields deemed to be in
their mutual interest, including with respect to statistics and
standards.
3. The
Parties, taking into account the growing economic significance of
service industries, agree to consult on matters affecting the conduct of
service business between the two countries and particular matters of
mutual interest relating to individual service sectors with the
objective, among others, of attaining maximum possible market access and
liberalization.
ARTICLE
XI
MARKET
DISRUPTION SAFEGUARDS
1. The
Parties agree to consult promptly at the request of either Party
whenever either actual or prospective imports of products originating in
the territory of the other Party cause or threaten to cause or
significantly contribute to market disruption. Market disruption exists
within a domestic industry whenever imports of an article, like or
directly competitive with an article produced by such domestic industry,
are increasing rapidly, either absolutely or relatively, so as to be a
significant cause of material injury, or threat thereof, to such
domestic industry.
2. The
consultations provided for in paragraph 1 of this Article shall have the
objectives of (a) presenting and examining the factors relating to such
imports that may be causing or threatening to cause or significantly
contributing to market disruption, and (b) finding means of preventing
or remedying such market disruptions. Such consultations shall be
concluded within sixty days from the date of the request for such
consultation, unless the Parties otherwise agree.
3. Unless
a different solution is mutually agreed upon during the consultations,
the importing Party may (a) impose quantitative import limitations,
tariff measures or any other restriction's or measures it deems
appropriate to prevent or remedy threatened or actual market disruptions
and (b) take appropriate measures to ensure that imports from the
territory of the other Party comply with such quantitative limitations
or other restrictions. In this event, the other Party shall be free to
deviate from its obligations under this Agreement with respect to
substantially equivalent trade.
4. Where
in the judgment of the importing Party, emergency action is necessary to
prevent or remedy such market disruptions the importing Party may take
such action at any time and without prior consultations provided that
such consultations shall be requested immediately thereafter.
5. Each
Party shall ensure that its domestic procedures for determining market
disruption are transparent and afford affected parties an opportunity to
submit their views.
6. The
Parties acknowledge that the elaboration of the market disruption
safeguard provisions in this Article is without prejudice to the right
of either Party to apply its laws and regulations applicable to trade in
textiles and textile products .and its laws and regulations applicable
to unfair trade, including antidumping and countervailing duty laws.
ARTICLE
XII
DISPUTE
SETTLEMENT
1.
Nationals, companies and organizations of either Party shall be accorded
national treatment with respect to access to all courts and
administrative bodies in the territory of the other Party as plaintiffs
defendants or otherwise. They shall not claim or enjoy immunity from
suit or execution of judgment, proceedings for the recognition and
enforcement of arbitral awards, or other liability in the territory of
the other Party with respect to commercial transactions; they also shall
not claim or enjoy immunities from taxation with respect to commercial
transactions, except as may be provided in other bilateral agreements.
2. The
Parties encourage the adoption of arbitration for the settlement of
disputes arising out of commercial transactions concluded between
nationals or companies of the United States and nationals or
organizations of the Mongolian People's Republic. Such arbitration may
be provided for by agreements in contracts between such nationals,
companies or organizations, or in separate written agreements between
them.
3. The
parties may provide for arbitration under any internationally recognized
arbitration rules including the UNCITRAL Rules in which case the parties
should designate an Appointing Authority under said rules in a country
other than t he United States or the Mongolian People's Republic.
4. Unless
otherwise agreed between the parties, the parties should specify as the
place of arbitration a country other than the United States or the
Mongolian People's Republic, that is a party to the Convention on the
Recognition and Enforcement of Foreign Arbitral Awards, done at New
York, 1958.
5.
Nothing in this Article shall be construed to prevent, and the Parties
shall not prohibit, the parties from agreeing upon any other form of
arbitration or dispute settlement which they mutually prefer and agree
best suits their particular needs.
6. Each
Party shall ensure that an effective means exists within its territory
for the recognition and enforcement of arbitral awards.