1. A Party may request the other Party to provide information on any matter covered by this Chapter. The other Party shall provide that information within a reasonable period of time.
2. If a Party considers that any draft or proposed technical regulation or conformity assessment procedure of the other Party might have a significant adverse effect on trade between the Parties, it may request technical discussions regarding its concerns with regard to the measure. The request shall be made in writing and identify:
(a) the measure;
(b) the provisions of this Chapter to which the requesting Party's concerns relate; and
(c) the reasons for the request, including a description of the requesting Party's concerns with regard to the measure.
3. The Party shall deliver a request pursuant to this Article to the contact point of the other Party designated pursuant to Article 9.13.
4. On request of a Party, the Parties shall meet to discuss the concerns raised in the request referred to in paragraph 2, in person or via video or teleconference, within 60 days of the date of the request. The Parties shall make every attempt to arrive at a mutually satisfactory resolution of the matter as expeditiously as possible.
5. If the requesting Party considers the matter to be urgent, it may request the other Party to meet within a shorter timeframe. The other Party shall consider that request.
6. For greater certainty, this Article is without prejudice to either Party's rights and obligations under Chapter 31.
Article 9.13. Contact Points
1. Each Party shall designate a contact point to facilitate cooperation and coordination under this Chapter and notify the other Party of its contact details. A Party shall promptly notify the other Party of any changes to those contact details.
2. The contact points shall work jointly to facilitate the implementation of this Chapter and cooperation between the Parties on all matters concerning technical barriers to trade. The contact points shall:
(a) organise the technical discussions and consultations referred to in Article 9.12;
(b) promptly address any issue that a Party raises related to the development, adoption, application or enforcement of standards, technical regulations or conformity assessment procedures;
(c) on request of a Party, arrange discussions on any matter arising under this Chapter; and
(d) exchange information on developments in non-governmental, regional and multilateral fora related to standards, technical regulations and conformity assessment procedures.
3. The contact points shall communicate with one another by any agreed method that is appropriate to carry out their functions.
Article 9.14. Sub-Committee on Technical Barriers to Trade
The Sub-Committee on Technical Barriers to Trade ("Sub-Committee") established pursuant to Article 33.4(1) shall:
(a) monitor the implementation and administration of this Chapter;
(b) enhance cooperation as regards the development and improvement of standards, technical regulations and conformity assessment procedures;
(c) establish priority areas of mutual interest for future work under this Chapter and consider proposals for new initiatives;
(d) monitor and discuss developments under the TBT Agreement; and
(e) take any other steps that the Parties consider will assist them in implementing this Chapter and the TBT Agreement.
Chapter 10. INVESTMENT LIBERALISATION
Article 10.1. Scope
1. This Chapter applies to measures, adopted or maintained by a Party in its territory, affecting the establishment of an enterprise or the operation of a covered enterprise in all economic activities by an investor of the other Party.
2. This Chapter does not apply to:
(a) audio-visual services;
(b) national maritime cabotage (1); or
(c) domestic and international air services or related services in support of air services (1), whether scheduled or non-scheduled, and services directly related to the exercise of traffic rights, other than:
(i) aircraft repair and maintenance services during which an aircraft is withdrawn from service;
(ii) selling and marketing of air transport services;
(iii) computer reservation system (CRS) services; and
(iv) ground handling services.
3. This Chapter does not apply to measures adopted or maintained by a Party relating to financial institutions of the other Party, to investors of the other Party or to the investments of such investors in financial institutions in the territory of that Party, as defined in Article 18.2.
4. Articles 10.5, 10.6, 10.8, 10.9 and 10.10 do not apply with respect to public procurement.
5. Articles 10.5, 10.6, 10.8 and 10.10 do not apply with respect to subsidies granted by a Party, including government-supported loans, guarantees and insurances.
Article 10.2. Definitions
1. For the purposes of this Chapter and Annexes 10-A, 10-B and 10-C:
(a) "activities performed in the exercise of governmental authority" means activities performed, including services supplied, neither on a commercial basis nor in competition with one or more economic operators;
(b) "aircraft repair and maintenance services" means such activities when undertaken on an aircraft or a part thereof while it is withdrawn from service and do not include so-called line maintenance;
(c) "computer reservation system (CRS) services" means services provided by computerised systems that contain information about air carriers' schedules, availability, fares and fare rules, through which reservations can be made or tickets may be issued;
(d) "covered enterprise" means an enterprise which is established in accordance with subparagraph (h) by an investor of a Party in the territory of the other Party, in accordance with the applicable law, and which is in existence as at the date of entry into force of this Agreement or is established thereafter;
(e) "cross-border supply of services" means the supply of a service:
(i) from the territory of a Party into the territory of the other Party; or
(ii) in the territory of a Party to a service consumer of the other Party;
(f) "economic activities" means activities of an industrial, commercial or professional character or activities of craftsmen, including the supply of services, except for activities performed in the exercise of governmental authority;
(g) "enterprise" means a juridical person, branch or representative office set up through establishment;
(h) "establishment" means the setting up, including the acquisition (1) of, an enterprise by an investor of a Party in the territory of the other Party;
(i) "ground handling services" means the supply at an airport, on a fee or contract basis, of the following services: airline representation, administration and supervision; passenger handling; baggage handling; ramp services; catering, except for the preparation of food; air cargo and mail handling; fuelling of an aircraft, aircraft servicing and cleaning; surface transport; and flight operation, crew administration and flight planning; ground handling services do not include: self-handling; security; line maintenance; aircraft repair and maintenance; or management or operation of essential centralised airport infrastructure, such as de-icing facilities, fuel distribution systems, baggage handling systems and fixed intra-airport transport systems;
(j) "investor of a Party" means a natural or juridical person of a Party that seeks to establish, is establishing or has established an enterprise in accordance with subparagraph (h);
(k) "juridical person of a Party" means (1):
(i) for the European Union:
(A) a juridical person constituted or organised under the law of the European Union or of at least one of its Member States and engaged in substantive business operations (2) in the territory of the European Union; and
(B) shipping companies established outside the European Union, and controlled by natural persons of a Member State, whose vessels are registered in, and fly the flag of, a Member State;
(ii) for Chile:
(A) a juridical person constituted or organised under the law of Chile and engaged in substantive business operations in the territory of Chile; and
(B) shipping companies established outside Chile, and controlled by natural persons of Chile, whose vessels are registered in, and fly the flag of, Chile;
(l) "operation" means the conduct, management, maintenance, use, enjoyment, sale or other form of disposal of an enterprise by an investor of a Party, in the territory of the other Party;
(m) "selling and marketing of air transport services" means opportunities for the air carrier concerned to sell and market freely its air transport services including all aspects of marketing such as market research, advertising and distribution; these activities do not include the pricing of air transport services nor the applicable conditions; and
(n) "service" means any service in any sector except for services supplied in the exercise of governmental authority.
Article 10.3. Right to Regulate
The Parties affirm the right to regulate within their territories to achieve legitimate policy objectives, such as the protection of public health, social services, education, safety, the environment, including climate change, public morals, social or consumer protection, privacy and data protection, or the promotion and protection of cultural diversity.
Article 10.4. Relation to other Chapters
1. In the event of inconsistency between this Chapter and Chapter 18, the latter shall prevail to the extent of the inconsistency.
2. A requirement of a Party that a service supplier of the other Party posts a bond or other form of financial security as a condition for the cross-border supply of a service in its territory does not in itself make this Chapter applicable to such cross-border supply of that service. This Chapter applies to measures adopted or maintained by the Party relating to the bond or financial security, if such bond or financial security constitutes a covered enterprise.
Article 10.5. Market Access
In the sectors or subsectors where market access commitments are undertaken, a Party shall not adopt or maintain, with respect to market access through establishment or operation by investors of the other Party or by covered enterprises, either on the basis of its entire territory or on the basis of a territorial subdivision, a measure that:
(a) limits the number of enterprises that may carry out a specific economic activity, whether in the form of numerical quotas, monopolies, exclusive rights or the requirement of an economic needs test;
(b) limits the total value of transactions or assets in the form of numerical quotas or the requirement of an economic needs test;
(c) limits the total number of operations or the total quantity of output expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test (1);
(d) restricts or requires specific types of legal entity or joint venture through which an investor of the other Party may carry out an economic activity; or
(e) limits the total number of natural persons who may be employed in a particular sector or that an enterprise may employ and who are necessary for, and directly related to, the performance of economic activity in the form of numerical quotas or the requirement of an economic needs test.
Article 10.6. National Treatment
1. Each Party shall accord to investors of the other Party and to covered enterprises, with respect to the establishment, treatment no less favourable than the treatment it accords, in like situations1, to its own investors and to their enterprises.
2. Each Party shall accord to investors of the other Party and to covered enterprises, with respect to the operation, treatment no less favourable than the treatment it accords, in like situations2, to its own investors and to their enterprises.
3. The treatment accorded by a Party under paragraphs 1 and 2 means:
(a) with respect to a regional or local government of Chile, treatment no less favourable than the most favourable treatment accorded, in like situations, by that level of government to investors of Chile and to their enterprises in its territory;
1 For greater certainty, whether treatment is accorded in "like situations" requires a case-by-case, fact-based analysis and depends on the totality of the situations.
2 For greater certainty, whether treatment is accorded in "like situations" requires a case-by-case, fact-based analysis and depends on the totality of the situations.
(b) with respect to a government of, or in, a Member State, treatment no less favourable than the most favourable treatment accorded, in like situations, by that government to investors of that Member State and to their enterprises in its territory (1).
Article 10.7. Public Procurement
1. Each Party shall ensure that enterprises constituting a covered enterprise are accorded treatment no less favourable than that accorded, in like situations, to its own enterprises with respect to any measure regarding the purchase of goods or services by a procuring entity for governmental purposes.
2. The application of the national treatment obligation provided for in this Article is subject to security and general exceptions as set out in Article 21.3.
Article 10.8. Most-favoured-nation Treatment
1. Each Party shall accord to investors of the other Party and to covered enterprises, with respect to the establishment, treatment no less favourable than the treatment it accords, in like situations (2), to investors of a third country and to their enterprises.
2. Each Party shall accord to investors of the other Party and to covered enterprises with respect to the operation, treatment no less favourable than the treatment it accords, in like situations (1), to investors of a third country and to their enterprises.
3. Paragraphs 1 and 2 shall not be construed as obliging a Party to extend to investors of the other Party or to covered enterprises the benefit of any treatment resulting from measures providing for the recognition of standards, including of the standards or criteria for the authorisation, licensing or certification of a natural person or an enterprise for carrying out an economic activity, or of prudential measures.
4. For greater certainty, the treatment referred to in paragraphs 1 and 2 does not include investment dispute resolution procedures or mechanisms provided for in other international investment treaties or trade agreements. The substantive provisions in other international investment treaties or trade agreements do not in themselves constitute "treatment" as referred to in paragraphs 1 and 2, and thus cannot give rise to a breach of this Article, absent measures adopted or maintained by a Party. Measures of a Party applied pursuant to such substantive provisions may constitute "treatment" under this Article and thus give rise to a breach of this Article.
Article 10.9. Performance Requirements
1. A Party shall not, in connection with the establishment or operation of an enterprise of a Party or of a third country in its territory, impose or enforce any requirement, or enforce any commitment or undertaking, to:
(a) export a given level or percentage of goods or services;
(b) achieve a given level or percentage of domestic content;
(c) purchase, use or accord a preference to goods produced or services provided in its territory, or purchase goods or services from natural persons or enterprises in its territory;
(d) relate in any way the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows associated with such enterprise;
(e) restrict sales of goods or services in its territory that such enterprise produces or provides by relating such sales in any way to the volume or value of its exports or foreign exchange earnings;
(f) transfer technology, a production process or other proprietary knowledge to a natural person or an enterprise in its territory;
(g) supply exclusively from the territory of that Party the goods it produces or the services it supplies to a specific regional or world market;
(h) locate the headquarters of that investor for a specific region of the world, which is broader than the territory of the Party, or the world market in its territory;
(i) hire a given number or percentage of its nationals;
(j) restrict the exportation or sale for export; or
(k) with regard to any licence contract in existence at the time the requirement is imposed or enforced, or any commitment or undertaking is enforced, or to any future licence contract (1) freely entered into between the investor and a natural or juridical person or any other entity in its territory, provided that the requirement is imposed or enforced or the commitment or undertaking is enforced, in a manner that constitutes a direct interference with that licence contract by an exercise of non-judicial governmental authority of a Party, adopt:
(i) a given rate or amount of royalty below a certain level under a licence contract; or
(ii) a given duration of the term of a licence contract.
2. For greater certainty, subparagraph (k) of paragraph 1 does not apply when the licence contract is concluded between the investor and a Party.
3. A Party shall not condition the receipt or continued receipt of an advantage, in connection with the establishment or operation of an enterprise in its territory, of a Party or of a third country, on compliance with any of the following requirements:
(a) to achieve a given level or percentage of domestic content;
(b) to purchase, use or accord a preference to goods produced or services provided in its territory, or to purchase goods or services from natural persons or enterprises in its territory;
(c) to relate in any way the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows associated with such enterprise;
(d) to restrict sales of goods or services in its territory that such enterprise produces or provides by relating such sales in any way to the volume or value of its exports or foreign exchange earnings; or
(e) to restrict the exportation or sale for export.
4. Paragraph 3 shall not be construed as preventing a Party from conditioning the receipt or continued receipt of an advantage, in connection with the establishment or operation of an enterprise in its territory by an investor of a Party or a third country, on compliance with a requirement to locate production, provide a service, train or employ workers, construct or expand particular facilities, or carry out research and development in its territory.
5. Subparagraphs (f) and (k) of paragraph 1 do not apply if:
(a) a Party authorises the use of an intellectual property right in accordance with Article 31or 31bis of the TRIPS Agreement or adopts or maintains measures requiring the disclosure of data or proprietary information that fall within the scope of, and are consistent with, paragraph 3 of Article 39 of the TRIPS Agreement; or
(b) the requirement is imposed or enforced or the commitment or undertaking is enforced by a court, administrative tribunal, or competition authority in order to remedy a practice determined after judicial or administrative process as being a violation of the Party's competition law.
6. Subparagraphs (a), (b) and (c) of paragraph 1 and subparagraphs (a) and (b) of paragraph 3 do not apply to qualification requirements for goods or services with respect to participation in export promotion and foreign aid programmes.
7. Subparagraphs (a) and (b) of paragraph 3 do not apply to requirements imposed by an importing Party relating to the content of goods necessary to qualify for preferential tariffs or preferential quotas.
8. For greater certainty, this Article shall not be construed as requiring a Party to permit a particular service to be supplied on a cross-border basis where that Party adopts or maintains restrictions or prohibitions on such provision of services which are consistent with the reservations, conditions or qualifications specified with respect to a sector, subsector or activity listed in Annexes 10-A, 10-B and 10-C.
9. This Article is without prejudice to commitments of a Party made under the WTO Agreement.
Article 10.10. Senior Management and Boards of Directors
A Party shall not require that a covered enterprise appoints natural persons of a particular nationality as members of boards of directors, or to a senior management position, such as executives or managers.
Article 10.11. Non-conforming Measures
1. Articles 10.6, 10.8, 10.9 and 10.10 do not apply to:
(a) any existing non-conforming measure that is maintained by:
(i) for the European Union:
(A) the European Union, as set out in Appendix 10-A-1;
(B) the central government of a Member State, as set out in Appendix 10-A-1;
(C) a regional level of government of a Member State, as set out in Appendix 10-A-1; or
(D) a local level of government; and
(ii) for Chile:
(A) the central government, as set out in Appendix 10-A-2;
(B) a regional level of government, as set out in Appendix 10-A-2; or
(C) a local level of government;
(b) the continuation or prompt renewal of any non-conforming measure referred to in subparagraph (a) of this paragraph; or
(c) a modification to any non-conforming measure referred to in subparagraph (a) of this paragraph, to the extent that the modification does not decrease the conformity of the measure, as it existed immediately before the modification, with Article 10.6, 10.8, 10.9 or 10.10.
2. Articles 10.6, 10.8, 10.9 and 10.10 do not apply to measures of a Party with respect to sectors, sub-sectors or activities as set out in its schedule in Annex 10-B.
3. A Party shall not, under any measure adopted after the date of entry into force of this Agreement and covered by its reservations set out in Annex 10-B, require an investor of the other Party, by reason of its nationality, to sell or otherwise dispose of a covered enterprise existing at the time the measure becomes effective.
4. Article 10.5 does not apply to any measure of a Party which is consistent with the commitments set out in Annex 10-C.
5. Articles 10.6 and 10.8 do not apply to any measure of a Party that constitutes an exception to, or derogation from, Article 3 or 4 of the TRIPS Agreement, as specifically provided for in Articles 3, 4 and 5 of that Agreement.