(i) Arbitrators shall be precluded from disclosing matters relating to actual or potential violations of this Code of Conduct unless the disclosure is with both Contact Units and serves the need to determine whether an arbitrator has violated or may violate this Code of Conduct.
6. Independence and impartiality of arbitrators
(a) Arbitrators must be independent and impartial. Arbitrators shall act fairly and shall not create the appearance of impropriety or bias.
(b) Arbitrators shall not be influenced by self-interest, outside pressure, political considerations, public pressure, loyalty to a Party or fear of criticism.
(c) Arbitrators may not, directly or indirectly, incur any obligation or accept any benefit that would in any way interfere, or appear to interfere, with the proper performance of their duties.
(d) Arbitrators shall not use their position on the arbitral tribunal to promote personal or private interests. Arbitrators shall avoid actions that may create the impression that others are in a special position to influence them. Arbitrators shall make every effort to prevent or discourage others from claiming to have such influence.
(e) Arbitrators shall not allow their past or present financial, business, professional, family or social relationships or responsibilities to influence their conduct or judgment.
(f) Arbitrators shall avoid establishing any relationship or acquiring any financial interest which is likely to influence their impartiality or which might reasonably create the appearance of impropriety or bias.
(g) If an arbitrator's interest, personal relationship or matter is incompatible with subparagraphs (a) through (f), the arbitrator may accept appointment to an arbitral tribunal or may continue to serve on an arbitral tribunal, as appropriate, if the Parties waive the violation or if, after the arbitrator has taken steps to cure the violation, the Parties determine that the incompatibility no longer exists.
7. Obligations of former arbitrators
Former arbitrators shall avoid any appearance that their actions may create the appearance that they were biased in the performance of their duties or that they might have benefited from the decisions of the arbitral tribunal.
8. Confidentiality
(a) Arbitrators and former arbitrators shall not at any time disclose or use any information relating to a proceeding or acquired during a proceeding except for the purposes of the proceeding itself, nor shall they disclose or use such information for personal gain or for the benefit of others, or to adversely affect the interests of others.
(b) The arbitrators shall not disclose a report of the arbitral tribunal issued under this Chapter before the Parties publish the final report. Arbitrators and former arbitrators shall not disclose at any time the identity of arbitrators who are associated with the majority or minority vote.
(c) Arbitrators and former arbitrators shall not at any time disclose the deliberations of an arbitral tribunal or the opinion of an arbitrator, except as required by law.
(d) Arbitrators shall not make public statements about the merits of a pending proceeding.
9. Responsibilities of assistants, advisors and experts
Paragraphs 3, 4, 5(d), 5(f), 7 and 8 also apply to assistants, advisers and experts.
Appendix. AFFIDAVIT OF CONFIDENTIALITY AND COMPLIANCE WITH THE CODE OF CONDUCT
1. I acknowledge having received a copy of the Code of Conduct for Dispute Settlement Arbitration Proceedings under Chapter 22 (Dispute Settlement) of the Trade Integration Agreement between the Republic of Chile and the Republic of Ecuador.
2. I acknowledge that I have read and understood the Code of Conduct.
3. I understand that I have a continuing obligation to disclose interests, personal relationships and matters that may be related to the integrity or fairness of the arbitration dispute resolution proceeding. As part of that obligation, I make the following affidavit:
(a) My financial interest in the proceedings or their outcome is as follows:
(b) My pecuniary interest in any administrative proceedings, domestic judicial proceedings and other international dispute settlement proceedings relating to matters that may be decided in the proceeding for which I am under consideration is as follows:
(c) The economic interests that any employer, partner, associate or family member may have in the proceedings or their outcome are as follows:
(d) The economic interests that any employer, partner, associate or family member may have in any administrative proceeding, domestic judicial proceeding and other international dispute settlement proceedings involving matters that may be decided in the proceeding for which I am under consideration are as follows:
(e) My past or present financial, business, professional, family or social relationships with any party to the proceeding or its counsel are as follows:
(f) My past or present financial, business, professional, family or social relationships with any party to the proceeding or its counsel, involving any employer, partner, associate or family member, are as follows:
(g) My public advocacy or legal or other representation relating to any matter at issue in the proceeding or involving the same goods or services is as follows:
(h) My other interests, relationships and matters that may affect the integrity or fairness of the dispute resolution proceeding and that have not been disclosed in subparagraphs (a) through (g) in this opening statement are as follows:
Subscribed on the day _____ of the month ______of the year___.
By:
Name ___________________
Signature ________________
Chapter 23. GENERAL EXCEPTIONS
Article 23.1. General Exceptions
1. For the purposes of Chapters 2 (National Treatment and Market Access), 3 (Rules of Origin), 4 (Trade Facilitation), 7 (Sanitary and Phytosanitary Measures), 8 (Technical Barriers to Trade) and 10 (Electronic Commerce) of this Agreement, Article XX of the GATT 1994 and its interpretative notes are incorporated into and made part of this instrument, mutatis mutandis. The Parties understand that the measures referred to in Article XX(b) of GATT 1994 include environmental measures necessary to protect human, animal or plant life or health, and that Article XX(g) of GATT 1994 applies to measures relating to the conservation of living or non-living exhaustible natural resources.
2. For the purposes of Chapter 9 (Trade in Services) and Chapter 10 (Electronic Commerce) (1), paragraphs (a), (b) and (c) of Article XIV of the GATS are hereby incorporated into and made part of this Agreement, mutatis mutandis. The Parties understand that the measures referred to in Article XIV(b) of the GATS include environmental measures necessary to protect human, animal or plant life or health.
Article 23.2. Essential Security
Nothing in this Agreement shall be construed to mean:
(a) oblige a Party to provide or give access to information the disclosure of which it considers contrary to its essential security interests or,
(b) prevent a Party from applying any measure it considers necessary for the protection of its essential security interests, as well as for the fulfilment of its obligations under the Charter of the United Nations with respect to the maintenance and restoration of international peace and security.
Article 23.3. Disclosure of Information
Nothing in this Agreement shall be construed to require a Party to provide or permit access to information the disclosure of which would impede law enforcement or would be contrary to the Party's law protecting the personal privacy or financial affairs or accounts of individual customers of financial institutions.
Article 23.4. Balance of Payments
1. Nothing in this Agreement shall be construed to prevent a Party from adopting or maintaining measures restricting transfers or payments for current account transactions in the event that it experiences serious difficulties in its balance of payments and external finances or the threat thereof.
2. Nothing in this Agreement shall be construed to prevent a Party from adopting or maintaining measures restricting payments or transfers related to capital movements:
(a) in the event of serious difficulties in its balance of payments and external finances, or the threat thereof, or
(b) where, in exceptional circumstances, the payments or capital transfers cause or threaten to cause serious difficulties for macroeconomic management, in particular for the operation of monetary or exchange rate policy.
3. Any action taken or maintained pursuant to paragraphs 1 and 2 shall:
(a) be applied in a non-discriminatory manner such that the other Party is treated less favourably than any non-Party;
(b) be consistent with the Articles of Agreement of the International Monetary Fund;
(c) avoid unnecessary damage to the commercial, economic and financial interests of another Party;
(d) not go beyond what is necessary to overcome the circumstances set out in paragraph 1 or 2, and
(e) be temporary and phased out as soon as the situations referred to in paragraph 1 or 2 improve.
4. With respect to trade in goods, nothing in this Agreement shall be construed to prevent a Party from adopting restrictive measures on imports so as to enable it to safeguard its external financial position or balance of payments. Such import-restrictive measures shall be consistent with the GATT 1994, in particular Articles XI, XV and XVII, Section B, and the Understanding on Balance of Payments Provisions of the General Agreement on Tariffs and Trade 1994.
5. With respect to trade in services, nothing in this Agreement shall be construed to prevent a Party from adopting trade-restrictive measures in order to safeguard its external financial position or balance of payments. Such restrictive measures shall be consistent with the GATS.
6. A Party that adopts or maintains measures in accordance with paragraphs 1, 2, 4 or 5 shall:
(a) promptly notify the other Party of the measures adopted or maintained, including any amendments thereto, and
(b) promptly enter into consultations with the other Party with a view to reviewing measures previously maintained or adopted by it, provided that consultations regarding the adopted measures are not being conducted before the WTO.
7. Any statistical or other factual findings of fact presented by the International Monetary Fund on exchange, monetary reserves and balance of payments issues shall be accepted in the consultations and the conclusions shall be based on the Fund's assessment of the external financial and balance of payments situation of the Party subject to the consultations.
Article 23.5. Taxation Measures
1. For purposes of this Article:
designated authorities means:
(a) in the case of Chile, the Undersecretary of Finance, or his successor, and
(b) in the case of Ecuador, the Director-General of the Internal Revenue Service, or his successor;
The designation of a successor to any such authority and the date on which he or she assumes that capacity shall be notified in writing to the other Party.
tax treaty means a convention for the avoidance of double taxation or other international agreement or arrangement on tax matters, and
Taxes and tax measures include excise taxes, but do not include:
(a) any tariff or charge of any kind applied to or in connection with the importation of a good, and any form of surcharge or surtax applied in connection with such importation, or
(b) any duty or other charge related to the importation of proportionate cost of services rendered, or
(c) any anti-dumping duty or countervailing measure.
2. Except as provided in this Article, nothing in this Agreement shall apply to taxation measures.
3. Nothing in this Agreement shall affect the rights and obligations of either Party under any tax treaty. In the event of any inconsistency between this Agreement and any such tax treaty, such tax treaty shall prevail to the extent of the inconsistency.
4. In the case of a tax treaty between the Parties, if a dispute arises as to the existence of any inconsistency between this Agreement and the tax treaty, the dispute shall be referred to the Parties' designated authorities. The designated authorities of the Parties shall have six (6) months from the date of referral of the dispute to make a determination as to the existence of any inconsistency. If those designated authorities so agree, the period may be extended to twelve (12) months from the date of referral of the dispute. No proceeding relating to the measure giving rise to the dispute may be initiated under Chapter 22 (Dispute Settlement) until the expiration of the six-month period, or such other period as may be agreed upon by the designated authorities. An arbitral tribunal established to hear a dispute relating to a taxation measure shall accept as binding the determination made by the designated authorities of the Parties under this paragraph.
5. Notwithstanding paragraph 3:
(a) Article 2.1 (National Treatment) and such other provisions in this Agreement as are necessary to give effect to that Article shall apply to taxation measures to the same extent as Article I of GATT 1994, and
(b) Article 2.6 (Import and Export Restrictions) shall apply to taxation measures.
6. Subject to paragraph 3:
(a) Article 9.3 (National Treatment) shall apply to taxation measures on income, capital gains, on the taxable capital of corporations, or on the value of an investment or property (2) (but not on the transfer of such investment or property), that relate to the purchase or consumption of specified services, except that nothing in this subparagraph shall prevent a Party from conditioning the receipt or continued receipt of an advantage related to the purchase or consumption of specified services on requirements to supply the service in its territory, and
(b) Article 9.3 (National Treatment) shall apply to all tax measures, other than those on income, capital gains, on the taxable capital of corporations, on the value of an investment or property (3) (but not on the transfer of that investment or property), or estate, inheritance, gift, and generation-skipping transfer taxes;
but nothing in the Article referred to in subparagraphs (a) and (b) shall apply to:
(c) any most-favoured-nation obligation with respect to an advantage granted by a Party in accordance with a tax convention;
(d) a non-conforming provision of any existing tax measure;
(e) the continuation or prompt renewal of a non-conforming provision of any existing tax measure;
(f) an amendment of a non-conforming provision of any existing taxation measure, to the extent that such amendment does not reduce its degree of conformity, at the time the amendment is made, with any of those Articles (4);
(g) the adoption or application of any new taxation measure aimed at ensuring the equitable or effective application or collection of taxes, including any taxation measure that differentiates between persons based on their place of residence for tax purposes, provided that the taxation measure does not arbitrarily discriminate between persons, goods or services of the Parties (5);
(h) a provision that conditions the receipt or continued receipt of an advantage relating to contributions to, or income from, a pension fund, pension plan or other scheme to provide pension, retirement or similar benefits on a requirement that the Party maintain continuing jurisdiction, regulation or supervision over that fund, plan, or other arrangement.
Chapter 24. FINAL PROVISIONS
Article 24.1. Annexes, Appendices and Footnotes
The annexes, appendices and footnotes to this Agreement constitute an integral part of this Agreement.
Article 24.2. Amendments and Additions
1. The Parties may agree on any amendments or additions to this Agreement.
2. The agreed amendments and additions shall enter into force in accordance with the provisions of Article 24.7, and shall constitute an integral part of this Agreement.
Article 24.3. Amendments to Incorporated or Referred Agreements
In the event that any agreement incorporated or referred to in this Agreement, including the WTO Agreement, is amended, the Parties shall consult with respect to the need to amend this Agreement.
Article 24.4. Accession
1. In compliance with the provisions of the Treaty of Montevideo 1980, this Agreement is open to the accession, through prior negotiation, of the other member countries of ALADI.
2. The accession shall be formalized once its terms have been negotiated between the Parties and the acceding country, through the conclusion of an Additional Protocol to this Agreement, which shall enter into force sixty (60) days after being deposited with the General Secretariat of LAIA.
Article 24.5. Convergence
The Parties shall promote the convergence of this Agreement with other integration agreements of Latin American countries, in accordance with the mechanisms established in the Treaty of Montevideo 1980.
Article 24.6. General Review and Future Negotiations
1. The Parties may undertake a general review of this Agreement with a view to its updating or extension after its entry into force.
2. Unless otherwise agreed, the Parties shall negotiate an investment chapter after the entry into force of this Agreement, as well as such other disciplines as the Parties may agree.
Article 24.7. Entry Into Force and Denunciation
1. This Agreement shall be of indefinite duration.
2. The entry into force of this Agreement is subject to the completion of the necessary internal legal procedures of each Party.
3. This Agreement shall enter into force ninety (90) days after the date on which the General Secretariat of ALADI notifies the Parties of having received the last communication from the Parties informing the compliance with the requirements established in their internal legislations.
4. Any of the Parties may denounce this Agreement by means of a written notification to the General Secretariat of ALADI. This Agreement shall cease to produce its effects one hundred and eighty (180) days after the date on which the General Secretariat of ALADI notifies the Parties of having received such notification.
5. The General Secretariat of ALADI shall be the depository of this Agreement, of which it shall send duly authenticated copies to the Parties.
Article 24.8. Repeals and Transitional Provisions
1. The Parties agree to terminate ECA No. 65, including its annexes, appendices, protocols, and other instruments signed thereunder. This provision shall operate automatically once the procedure established in Article 24.7.3 has been completed.
2. Notwithstanding the previous paragraph, the requirements and certifications demanded in the exercise of the commercial exchange of the Parties, agreed in ACE N°65, shall be admitted until sixty (60) days after the entry into force of this Agreement.
Conclusion
IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective Governments, have signed this Agreement in two equally authentic copies.
DONE at Guayaquil and Santiago, on the thirteenth day of the month of August 2020.
FOR THE GOVERNMENT OF THE REPUBLIC OF CHILE
ANDRES ALLAMAND
Minister of Foreign Affairs
FOR THE GOVERNMENT OF THE REPUBLIC OF ECUADOR
IVAN ONTANEDA
Minister of Production, Foreign Trade, Investment and Fishing