Article 15.11. Denial of Benefits
1. A Party may deny the benefits of this Chapter to a service supplier of another Party if the service supplier is an enterprise owned or controlled by a person of a non-Party, and the denying Party adopts or maintains a measure with respect to the non-Party or a person of the non-Party that prohibits a transaction with that enterprise or that would be violated or circumvented if the benefits of this Chapter were accorded to that enterprise.
2. A Party may deny the benefits of this Chapter to a service supplier of another Party if the service supplier is an enterprise owned or controlled by a person of a non-Party, or by a person of the denying Party, that has no substantial business activities in the territory of any Party other than the denying Party.
Article 15.12. Payments and Transfers
1. Each Party shall permit all transfers and payments that relate to the cross-border supply of services to be made freely and without delay into and out of its territory.
2. Each Party shall permit transfers and payments that relate to the cross-border supply of services to be made in a freely usable currency at the market rate of exchange that prevails at the time of transfer.
3. Notwithstanding paragraphs 1 and 2, a Party may prevent or delay a transfer or payment through the equitable, non-discriminatory, and good faith application of its laws that relate to:
(a) bankruptcy, insolvency, or the protection of the rights of creditors;
(b) issuing, trading, or dealing in securities or derivatives; cosmetics; common consumer products for which medical expertise is not required, such as cotton swabs; and other hygiene and cleaning products. The term "nutritional supplement" applies to all health-maintenance products not intended to cure or treat a disease, and that are sold without prescription or other special authorization.
(c) financial reporting or record keeping of transfers when necessary to assist law enforcement or financial regulatory authorities;
(d) criminal or penal offenses; or
(e) ensuring compliance with orders or judgments in judicial or administrative proceedings.
4. For greater certainty, this Article does not preclude the equitable, non-discriminatory, and good faith application of a Party's laws relating to its social security, public retirement, or compulsory savings programs.
Chapter 16. TEMPORARY ENTRY FOR BUSINESS PERSONS
Article 16.1. Definitions
For the purposes of this Chapter:
business person means a citizen of a Party who is engaged in trade in goods, the supply of services or the conduct of investment activities;
citizen means, with respect to Mexico, a national or a citizen according to the provisions of Articles 30 and 34, respectively, of the Mexico's Constitution (Constitución Política de los Estados Unidos Mexicanos); and
temporary entry means entry into the territory of a Party by a business person of another Party without the intent to establish permanent residence.
Article 16.2. Scope
1. This Chapter applies to measures affecting the temporary entry of business persons of a Party into the territory of another Party.
2. This Chapter does not apply to measures affecting natural persons seeking access to the employment market of another Party, nor does it apply to measures regarding citizenship, nationality, residence or employment on a permanent basis.
3. Nothing in this Agreement prevents a Party from applying measures to regulate the entry of natural persons of another Party into, or their temporary stay in, its territory, including those measures necessary to protect the integrity of, and to ensure the orderly movement of natural persons across, its borders, provided that those measures are not applied in a manner as to nullify or impair the benefits accruing to any Party under this Chapter.
Article 16.3. General Obligations
1. Each Party shall apply its measures relating to this Chapter expeditiously so as to avoid unduly impairing or delaying trade in goods or services or the conduct of investment activities under this Agreement.
2. The Parties shall endeavor to develop and adopt common criteria, definitions and interpretations for the implementation of this Chapter.
Article 16.4. Grant of Temporary Entry
1. Each Party shall grant temporary entry to a business person who is otherwise qualified for entry under its measures relating to public health and safety and national security, in accordance with this Chapter, including Annex 16-A (Temporary Entry for Business Persons).
2. A Party may refuse to grant temporary entry or issue an immigration document authorizing employment to a business person where the temporary entry of that person might adversely affect:
(a) the settlement of a labor dispute that is in progress at the place or intended place of employment; or
(b) the employment of a person who is involved in that dispute.
3. If a Party refuses pursuant to paragraph 2 to grant temporary entry or issue an immigration document authorizing employment, it shall:
(a) provide written notice to the business person of the reasons for the refusal; and
(b) promptly provide written notice to the Party whose business person has been refused entry of the reasons for the refusal.
4. Each Party shall limit any fees for processing applications for temporary entry of business persons to the approximate cost of services rendered.
5. The sole fact that a Party grants temporary entry to a business person of another Party pursuant to this Chapter does not exempt that business person from meeting any applicable licensing or other requirements, including any mandatory codes of conduct, to practice a profession or otherwise engage in business activities.
Article 16.5. Provision of Information
1. Further to Article 29.2 (Publication), each Party shall publish online or otherwise make publicly available explanatory material regarding the requirements for temporary entry under this Chapter that will enable a business person of another Party to become acquainted with them.
2. Each Party shall collect and maintain, and make available to the other Parties in accordance with its law, data respecting the granting of temporary entry under this Chapter to business persons of the other Parties who have been issued immigration documentation, including, if practicable, data specific to each occupation, profession, or activity.
Article 16.6. Temporary Entry Working Group
1. The Parties hereby establish a Temporary Entry Working Group, comprising representatives of each Party, including representatives of immigration authorities.
2. The Working Group shall meet at least once each year to consider: (a) the implementation and administration of this Chapter;
(b) the development of measures to further facilitate temporary entry of business persons on a reciprocal basis;
(c) the waiving of labor certification tests or procedures of similar effect for spouses of business persons who have been granted temporary entry for more than one year under Section B, C or D of Annex 16-A (Temporary Entry for Business Persons);
(d) proposed modifications of or additions to this Chapter; and (e) issues of common interest related to the temporary entry of business persons, such as the use of technologies related to processing of applications, that can be further explored among the Parties in other fora.
Article 16.7. Dispute Settlement
1. A Party may not initiate proceedings under Article 31.5 (Commission Good Offices, Conciliation, and Mediation) regarding a refusal to grant temporary entry under this Chapter or a particular case arising under Article 16.3(1) unless:
(a) the matter involves a pattern of practice; and
(b) the business person has exhausted the available administrative remedies regarding the particular matter.
2. The remedies referred to in paragraph (1)(b) will be deemed to be exhausted if a final determination in the matter has not been issued by the competent authority within one year of the institution of an administrative proceeding, and the failure to issue a determination is not attributable to delay caused by the business person.
Article 16.8. Relation to other Chapters
Except for this Chapter, Chapter 1 (Initial Provisions and General Definitions), Chapter 30 (Administrative and Institutional Provisions), Chapter 31 (Dispute Settlement), Chapter 34 (Final Provisions), Article 29.2 (Publication), and Article 29.3 (Administrative Proceedings), this Agreement does not impose an obligation on a Party regarding its immigration measures.
ANNEX 16-A. TEMPORARY ENTRY FOR BUSINESS PERSONS
Section A. Business Visitors
1. Each Party shall grant temporary entry to a business person seeking to engage in a business activity set out in Appendix 1, without requiring that person to obtain an employment authorization, provided that the business person otherwise complies with the Party's measures applicable to temporary entry, on presentation of:
(a) proof of citizenship of a Party;
(b) documentation demonstrating that the business person will be so engaged and describing the purpose of entry; and
(c) evidence demonstrating that the proposed business activity is international in scope and that the business person is not seeking to enter the local labor market.
2. Each Party shall provide that a business person may satisfy the requirements of paragraph 1(c) by demonstrating that:
(a) the primary source of remuneration for the proposed business activity is outside the territory of the Party granting temporary entry; and
(b) the business person's principal place of business and the actual place of accrual of profits, at least predominantly, remain outside that Party's territory.
A Party shall normally accept an oral declaration as to the principal place of business and the actual place of accrual of profits. Where the Party requires further proof, it shall normally consider a letter from the employer attesting to these matters as sufficient proof.
3. Paragraph 1 does not limit the ability of a business person seeking to engage in a business activity other than those set out in Appendix 1 to seek temporary entry under a Party's measures relating to the entry of business persons. 4. No Party shall:
(a) as a condition for temporary entry under paragraph 1, require prior approval procedures, petitions, labor certification tests or other procedures of similar effect; or
(b) impose or maintain a numerical restriction relating to temporary entry under paragraph 1.
5. Notwithstanding paragraph 4, a Party may require a business person seeking temporary entry under this Section to obtain a visa or its equivalent prior to entry. Before imposing a visa requirement, the Party shall consult, on request, with a Party whose business persons would be affected with a view to avoiding the imposition of the requirement. With respect to an existing visa requirement, a Party shall consult, on request, with a Party whose business persons are subject to the requirement with a view to its removal.
Section B. Traders and Investors
1. Each Party shall grant temporary entry and provide confirming documentation to a business person seeking to:
(a) carry on substantial trade in goods or services principally between the territory of the Party of which the business person is a citizen and the territory of the Party into which entry is sought; or
(b) establish, develop, administer or provide advice or key technical services to the operation of an investment to which the business person or the business person's enterprise has committed, or is in the process of committing, a substantial amount of capital,
in a capacity that is supervisory, executive or involves essential skills, provided that the business person otherwise complies with the Party's measures applicable to temporary entry.
2. No Party shall:
(a) as a condition for temporary entry under paragraph 1, require labor certification tests or other procedures of similar effect; or
(b) impose or maintain a numerical restriction relating to temporary entry under paragraph 1.
3. Notwithstanding paragraph 2, a Party may require a business person seeking temporary entry under this Section to obtain a visa or its equivalent prior to entry. Before imposing a visa requirement, the Party shall consult with a Party whose business persons would be affected with a view to avoiding the imposition of the requirement. With respect to an existing visa requirement, a Party shall consult, on request, with a Party whose business persons are subject to the requirement with a view to its removal.
Section C. Intra-Company Transferees
1. Each Party shall grant temporary entry and provide confirming documentation to a business person employed by an enterprise who seeks to render services to that enterprise or a subsidiary or affiliate thereof, in a capacity that is managerial, executive or involves specialized knowledge, provided that the business person otherwise complies with the Party's measures applicable to temporary entry. A Party may require the business person to have been employed continuously by the enterprise for one year within the three-year period immediately preceding the date of the application for admission.
2. No Party shall:
(a) as a condition for temporary entry under paragraph 1, require labor certification tests or other procedures of similar effect; or
(b) impose or maintain a numerical restriction relating to temporary entry under paragraph 1.
3. Notwithstanding paragraph 2, a Party may require a business person seeking temporary entry under this Section to obtain a visa or its equivalent prior to entry. Before imposing a visa requirement, the Party shall consult with a Party whose business persons would be affected with a view to avoiding the imposition of the requirement. With respect to an existing visa requirement, a Party shall consult, on request, with a Party whose business persons are subject to the requirement with a view to its removal.
Section D. Professionals
1. Each Party shall grant temporary entry and provide confirming documentation to a business person seeking to engage in a business activity at a professional level in a profession set out in Appendix 2, if the business person otherwise complies with the Party’s measures applicable to temporary entry, on presentation of:
(a) proof of citizenship of a Party; and
(b) documentation demonstrating that the business person will be so engaged and describing the purpose of entry.
2. No Party shall:
(a) as a condition for temporary entry under paragraph 1, require prior approval procedures, petitions, labor certification tests or other procedures of similar effect; or
(b) impose or maintain a numerical restriction relating to temporary entry under paragraph 1.
3. Notwithstanding paragraph 2, a Party may require a business person seeking temporary entry under this Section to obtain a visa or its equivalent prior to entry. Before imposing a visa requirement, the Party shall consult with a Party whose business persons would be affected with a view to avoiding the imposition of the requirement. With respect to an existing visa requirement, a Party shall consult, on request, with a Party whose business persons are subject to the requirement with a view to its removal.
Chapter 17. FINANCIAL SERVICES
Article 17.1. Definitions
For the purposes of this Chapter:
computing facility means a computer server or storage device for the processing or storage of information for the conduct of business within the scope of the license, authorization, or registration of a covered person, but does not include a computer server or storage device of or those used to access:
(a) financial market infrastructures;
(b) exchanges or markets for securities or for derivatives such as futures, options, and swaps; or
(c) non-governmental bodies that exercise regulatory or supervisory authority over covered persons;
covered person means
(a) a financial institution of another Party; or
(b) a cross-border financial service supplier of another Party that is subject to regulation, supervision, and licensing, authorization, or registration by a financial regulatory authority of the Party; (1)
cross-border financial service supplier of a Party means a person of a Party that is engaged in the business of supplying a financial service within the territory of the Party and that seeks to supply or supplies a financial service through the cross-border supply of that service;
cross-border trade in financial services or cross-border supply of financial services means the supply of a financial service:
(a) from the territory of a Party into the territory of another Party;
(b) in the territory of a Party by a person of that Party to a person of another Party; or
(c) by a national of a Party in the territory of another Party,
but does not include the supply of a financial service in the territory of a Party by a covered investment;
financial institution means a financial intermediary or other enterprise that is authorized to do business and is regulated or supervised as a financial institution under the law of the Party in whose territory it is located;
financial institution of another Party means a financial institution, including a branch, located in the territory of a Party that is controlled by a person of another Party;
financial market infrastructure means a multi-participant system in which a covered person participates with other financial service suppliers, including the operator of the system, used for the purposes of clearing, settling, or recording payments, securities, derivatives, or other financial transactions;
financial service means a service of a financial nature. Financial services include all insurance and insurance-related services, and all banking and other financial services (excluding insurance), as well as services incidental or auxiliary to a service of a financial nature. Financial services include the following activities:
Insurance and insurance-related services
(a) direct insurance (including co-insurance):
(i) life,
(ii) non-life;
(b) reinsurance and retrocession;
(c) insurance intermediation, such as brokerage and agency; and
(d) services auxiliary to insurance, such as consultancy, actuarial, risk assessment, and claim settlement services;
Banking and other financial services (excluding insurance)
(e) acceptance of deposits and other repayable funds from the public;
(f) lending of all types, including consumer credit, mortgage credit, factoring, and financing of commercial transactions;
(g) financial leasing;
(h) all payment and money transmission services, including credit, charge and debit cards, travelers checks, and bankers drafts;
(i) guarantees and commitments;
(j) trading for own account or for account of customers, whether on an exchange, in an over-the-counter market or otherwise, the following:
(i) money market instruments (including checks, bills, certificates of deposits),
(ii) foreign exchange,
(iii) derivative products, including futures and options,
(iv) exchange rate and interest rate instruments, including products such as swaps and forward rate agreements,
(v) transferable securities, and
(vi) other negotiable instruments and financial assets, including bullion;
(k) participation in issues of all kinds of securities, including underwriting and placement as agent (whether publicly or privately) and supply of services related to these issues;
(l) money broking;
(m) asset management, such as cash or portfolio management, all forms of collective investment management, pension fund management, custodial, depository, and trust services;
(n) settlement and clearing services for financial assets, including securities, derivative products, and other negotiable instruments;
(o) provision and transfer of financial information, and financial data processing and related software by suppliers of other financial services; and
(p) advisory, intermediation and other auxiliary financial services on all the activities listed in subparagraphs (e) through (0), including credit reference and analysis, investment and portfolio research and advice, advice on acquisitions, and on corporate restructuring and strategy;
financial service supplier of a Party means a person of a Party that is engaged in the business of supplying a financial service within the territory of that Party;
investment means "investment" as defined in Article 14.1 (Definitions), except that with respect to "loans" and "debt instruments" referred to in that Article:
(a) a loan to or debt instrument issued by a financial institution is an investment only if it is treated as regulatory capital by the Party in whose territory the financial institution is located; and
(b) a loan granted by or debt instrument owned by a financial institution, other than a loan to or debt instrument issued by a financial institution referred to in subparagraph (a), is not an investment;
for greater certainty, a loan granted, or debt instrument owned, by a cross-border financial service supplier, other than a loan to or debt instrument issued by a financial institution, is an investment for the purposes of Chapter 14 (Investment), if that loan or debt instrument meets the criteria for investments set out in Article 14.1 (Definitions);
investor of a Party means a Party, or a person of a Party, that attempts to make, (2) is making, or has made an investment in the territory of another Party;
new financial service means a financial service not supplied in the Party's territory that is supplied within the territory of another Party, and includes any new form of delivery of a financial service or the sale of a financial product that is not sold in the Party's territory;
person of a Party means "person of a Party" as defined in Article 1.5 (General Definitions) and, for greater certainty, does not include a branch of an enterprise of a non-Party;
public entity means a central bank or monetary authority of a Party, or a financial institution that is owned or controlled by a Party; and
self-regulatory organization means a non-governmental body, including a securities or futures exchange or market, clearing agency, or other organization or association, that exercises regulatory or supervisory authority over financial service suppliers or financial institutions by statute or delegation from a central or regional government.
Article 17.2. Scope
1. This Chapter applies to a measure adopted or maintained by a Party relating to: