(a) the presiding arbitrator has expertise or experience in financial services law or practice, such as the regulation of financial institutions, and meets the qualifications set out in Article 15.26 (Investment – Arbitrators); and
(b) each of the other arbitrators of the tribunal:
(i) meets the qualifications set out in Article 15.26 (Investment –
Arbitrators); or
(ii) have expertise or experience in financial services law or practice, such as the regulation of financial institutions, and meet the qualifications set out in paragraphs 2, 4 and 7 of Article 15.26 (Investment – Arbitrators).
2. If an investor of a Party submits a claim to arbitration under Section D of Chapter 15 (Investment), and the respondent Party asserts a defence under Article 18.11, the respondent Party shall, no later than the date the tribunal fixes for the respondent Party to submit its principal submission on the merits, such as the counter-memorial, submit in writing to the authorities responsible for financial services of the Party of the claimant, as set out in Annex 18-B, a request for a joint determination by the financial authorities of the Parties on the issue of whether and to what extent Article 18.11 is a valid defence to the claim. The respondent Party shall provide the tribunal, if constituted, a copy of its request. The tribunal may proceed to hear the claim only as provided in paragraphs 4, 5 and 6.
3. With respect to the joint determination by the financial authorities of the Parties referred to in paragraph 2:
(a) the financial authorities of the Parties shall have 60 days from the date of the receipt of the request to exchange positions;
(b) the financial authorities of the Parties shall have 60 days from the exchange of positions in sub-paragraph (a) to make a joint determination;
(c) if a joint determination is made under sub-paragraph (b) the financial authorities of either Party shall transmit their decision to the disputing parties and the tribunal, if constituted; and
(d) if the financial authorities of the Parties have not made a joint determination under sub-paragraph (b), either Party may request, within 130 days of the receipt of the request for a joint determination, a panel to be established under Chapter 27 (Dispute Settlement) to decide
whether and to what extent the paragraph asserted is a valid defence to the claim. A Party may request the establishment of a panel without having to request consultations under Article 27.5 (Dispute Settlement – Consultations). The panel shall transmit its decision to the Parties and to the tribunal, if constituted.
4. If it is determined in the joint determination referred to in paragraph 3(b) or the decision of the panel referred to in subparagraph 3(d) that the paragraph asserted is a valid defence to all parts of the claim, the investor is deemed to have withdrawn its claim and to have discontinued the proceeding, with prejudice. The tribunal, if constituted, shall take note of the discontinuance in an order, after which the authority of the tribunal shall cease.
5. If it is determined in the joint determination referred to in subparagraph 3(b) or the decision of the panel referred to in subparagraph 3(d) that the paragraph asserted is only a valid defence to a part of the claim, the investor is deemed to have withdrawn that part of the claim and to have discontinued that part of the proceedings, with prejudice. The tribunal shall take note of the discontinuance of that part of the claim in an order and shall not proceed with the part of the claim for which the paragraph asserted is determined to be a valid defence.
6. If the financial authorities of the Parties do not make a joint determination under subparagraph 3(b) and no request for the establishment of a panel has been made under paragraph 3(d), the tribunal may decide the matter, provided that:
(a) in addition to the disputing parties, the Party of the investor claimant may make oral or written submissions to the tribunal regarding the issue of whether and to what extent the paragraph asserted is a valid defence to the claim prior to the tribunal deciding this issue. Unless it makes a submission, the Party of the investor shall be presumed for the purposes of the arbitration, to take a position on the application of the paragraph asserted that is not inconsistent with that of the respondent Party; and
(b) the tribunal shall draw no inference regarding the application of the paragraph asserted from the fact that the financial authorities of the Parties have not made a joint determination as described in paragraph 3(b).
7. For the purposes of this Article, the definitions of the following terms set out in Article 15.1 (Investment – Definitions) are incorporated: “claimant”, “disputing parties”, “disputing party”, “non-disputing Party” and “respondent Party”.
Annex 18-A Cross-Border Trade
CANADA 24
Insurance and insurance-related services
1. Article 18.6 applies to the cross-border supply of or trade in financial services, as defined in subparagraph (a) of the definition of “cross-border supply of financial
services” in Article 18.1, with respect to:
(a) insurance of risks relating to:
(i) maritime transport and commercial aviation and space launching and freight, including satellites, with such insurance to cover any or all of the following: the goods being transported, the vehicle transporting the goods and any liability deriving therefrom; and
(ii) goods in international transit;
(b) reinsurance and retrocession;
(c) services auxiliary to insurance, as described in subparagraph (d) of the definition of “financial service” in Article 18.1; and
(d) insurance intermediation, such as brokerage and agency, as referred to in subparagraph (c) of the definition of “financial service” in Article 18.1, of insurance of risks related to services listed in subparagraphs (a) and (b) of this paragraph.
Banking and other financial services (excluding insurance)
2. Article 18.6 applies to the cross-border supply of or trade in financial services, as defined in subparagraph (a) of the definition of “cross-border supply of financial
services” in Article 18.1, with respect to:
(a) provision and transfer of financial information, and financial data processing, as referred to in subparagraph (k) of the banking and other financial services (excluding insurance) category in the definition of “financial service” in Article 18.1; and
(b) advisory and other auxiliary financial services, and credit reference and analysis, excluding intermediation, relating to banking and other financial services, as referred to in subparagraph (l) of the banking and other financial services (excluding insurance) category in the definition of
“financial service” in Article 18.1.
24 For greater certainty, Canada requires that a cross-border financial services supplier maintain a local agent and records in Canada.
Insurance and insurance-related services
1. Article 18.6 applies to the cross-border supply of or trade in financial services as defined in subparagraph (a) of the definition of “cross-border supply of financial
services” in Article 18.1 with respect to:
(a) insurance of risks relating to:
(i) international maritime shipping, international commercial aviation and space launching and freight (including satellites), with such insurance to cover any or all of the following: the goods being transported, the vehicle transporting the goods, and any liability arising therefrom; and
(ii) goods in international transit;
(b) reinsurance and retrocession;
(c) consultancy, actuarial, risk assessment, and claim settlement services, related to services listed in subparagraph (a), as long as they are qualified by the supervisory authority;
(d) insurance intermediation related to services listed in subparagraphs (a) and (b).
Banking and other financial services (excluding insurance)
2. Article 18.6 applies to the cross-border supply of or trade in financial services as defined in subparagraph (a) of the definition of “cross-border supply of financial
services” in Article 18.1 with respect to:
(a) provision and transfer of financial information and financial data processing and related software as referred to in subparagraph (k) of the definition of financial service in Article 18.1, subject to prior authorization from the supervisory authority, when required; and
(b) advisory and other auxiliary services, excluding intermediation and credit reference and analysis, relating to banking and other financial services as referred to in subparagraph (l) of the definition of financial service in Article 18.1.
25 For greater certainty, Ecuador requires that a cross-border financial services supplier maintain a local representative and records in Ecuador.
Annex 18-B Authorities Responsible for Financial Services
The authorities for each Party responsible for financial services are:
(a) for Canada, the Department of Finance of Canada;
(b) for Ecuador, the Financial Policy and Regulation Board and the Ministry of Production, Foreign Trade and Investments or their successors.
Chapter 19. TEMPORARY MOVEMENT OF BUSINESS PERSONS
Article 19.1: Definitions
For the purposes of this Chapter:
business person means a citizen of a Party who is engaged in the trade in goods, the supply of services or the conduct of investment activities;
immigration formality means:
(a) for Canada, a permit authorizing work;
(b) for Ecuador, a visa, permit, pass or other document or electronic authority granting temporary entry; and
temporary entry means entry into the territory of a Party by a business person of the other Party without the intent to establish permanent residence.
Article 19.2: Scope
1. This Chapter applies to measures affecting the temporary entry of business persons of a Party into the territory of the other Party under the categories set out in Annex 19-A.
2. This Chapter does not apply to measures affecting natural persons seeking access to the employment market of the other Party, nor does it apply to measures regarding citizenship, nationality, residence or employment on a permanent basis.
3. This Agreement does not prevent a Party from applying immigration measures to regulate the entry of natural persons of the other Party into, or their temporary stay in, its territory, including 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 the other Party under this Chapter.
4. The sole fact that a Party requires business persons of the other Party to obtain a visa or an equivalent requirement prior to entry shall not be regarded as nullifying or impairing the benefits accruing to the other Party under this Chapter.
Article 19.3: Grant of Temporary Entry
1. Each Party shall grant temporary entry to a business person of the other Party, who is otherwise qualified for entry under its immigration measures, including measures relating to public health and safety and national security, in accordance with this Chapter.
2. A Party may refuse to grant temporary entry or issue an immigration formality to a business person of the other Party if the temporary entry of that business person might adversely affect:
(a) the settlement of any labour dispute that is in progress at the intended place of employment; or
(b) the employment of any natural person who is involved in such dispute.
3. If a Party refuses to grant temporary entry or issue an immigration formality pursuant to paragraph 2, it shall provide written notice to the business person of the reasons for the refusal.
4. The sole fact that a Party grants temporary entry or issues an immigration formality to a business person of the other 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 practise a profession or otherwise engage in business activities.
Article 19.4: Application Procedures
1. Each Party shall, as expeditiously as possible following receipt of a complete application for an immigration formality, issue its decision on the application to the business person. If the application is approved, the decision shall specify the period of stay and other conditions.
2. At the request of an applicant, the Party that has received a complete application for an immigration formality shall endeavour to promptly provide information concerning the status of the application.
3. Each Party shall endeavor to accept and process applications for an immigration formality in electronic format.
4. Each Party shall limit its fees for processing applications for an immigration formality to the approximate cost of services rendered.
Article 19.5: Provision of Information
1. Further to Article 14.2 (Transparency, Anti-corruption and Responsible Business Conduct – Publication) and Article 14.3 (Transparency, Anti-corruption and Responsible Business Conduct – Notification and Provision of Information), each Party shall, no later than six months after the date of entry into force of this Agreement:
(a) make publicly available online explanatory material on its measures relating to this Chapter; and
(b) adopt or maintain appropriate mechanisms to respond to enquiries from interested persons regarding measures relating to temporary entry covered by this Chapter.
2. Each Party shall, subject to its domestic laws regarding the protection of private or personal information:
(a) collect and maintain statistical data respecting the granting of immigration formalities to business persons of the other Party; and
(b) on request of the other Party, make available the information referred to in subparagraph (a).
Article 19.6: Contact Points
1. The Parties designate the following Contact Points, or their successors:
(a) for Canada: Director General;
Temporary Workers Branch; Citizenship and Immigration Canada;
(b) for Ecuador:
Undersecretary of Negotiations;
Ministry of Production, Foreign Trade and Investments.
2. The Contact Points shall meet as required to exchange information as described in Article 19.5 and to consider matters pertaining to this Chapter, such as:
(a) the implementation and administration of this Chapter;
(b) the development and adoption of common criteria and interpretations for the implementation of this Chapter;
(c) the development of measures to further facilitate temporary entry of business persons on a reciprocal basis;
(d) proposed modifications to this Chapter; and
(e) any other issues of mutual interest related to this Chapter.
Article 19.7: Cooperation
1. The Parties shall endeavour, subject to available resources, to cooperate to strengthen the institutional capacity of immigration authorities, including by exchanging information and experiences on immigration regulations and the implementation of immigration programs and technology, including those related to the use of biometric technology, advanced information systems for passengers and security in travel documents.
2. The Parties shall endeavour to support the return and readmission of business persons staying in the territory of a Party in contravention of its laws.
Article 19.8: Dispute Settlement
1. A Party shall not have recourse to dispute settlement under Chapter 27 (Dispute Settlement) regarding a refusal to grant temporary entry to business persons under this Chapter unless:
(a) the matter involves a pattern of practice;
(b) the business person who has been refused temporary entry has exhausted the applicable administrative remedies; and
(c) the Contact Points have been unable to resolve the issue.
2. The remedies referred to in paragraph 1(b) shall be deemed to have been 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 19.9: Relation to Other Chapters
1. This Agreement does not impose an obligation on a Party regarding its immigration measures, except as specifically provided in this Chapter or Chapter 14 (Transparency, Anti-corruption and Responsible Business Conduct).
2. This Chapter does not impose obligations or commitments on a Party with respect to other Chapters of this Agreement.
Article 19.10: Review of Commitments
Within three years following the entry into force of this Agreement, the Parties shall consider updating their commitments under Annex 19-A.
Annex 19-A
Canada’s Schedule of Specific Commitments on Temporary Movement of Business Persons
1. The following sets out Canada’s commitments in accordance with Article 19.3 in respect of the temporary entry of business persons.
2. For greater certainty, Canada’s commitments do not impose any obligation on Canada’s Temporary Resident Visa or any subsequent visa regime.
3. If an immigration formality is required, Canada reserves the right to require that the business person be remunerated at a level commensurate with other similarly qualified business persons within the industry in the region in Canada where the work is performed.
A. Business Visitors
Canada’s commitments under this category apply to Ecuadorian business persons if Ecuador has made a reciprocal commitment in its Schedule for Business Visitors, at the activity level, without reserving the right to impose or maintain an economic needs test or numerical restriction.
Description of Category Conditions and Limitations (including length of stay)
A Business Visitor is a business person seeking to engage in one of the following covered business activities:
Marketing
Market researchers or analysts conducting research or analysis independently or for an enterprise located in the territory of the other Party.
Trade fairs and exhibition
Trade-fair or promotional personnel attending a trade convention.
Meetings and Consultations
Business persons attending meetings, seminars or conferences; or engaged in consultations with business associates. Canada shall grant temporary entry for a period of up to 180 days to an Ecuadorian business person seeking to enter Canada as a Business Visitor to engage in a covered business activity, without requiring that business person to obtain an immigration formality, on the condition that the business person provides evidence demonstrating that the proposed business activity is international in scope and the business person is not seeking to enter the local labour market.
The Ecuadorian business person must demonstrate that:
(a) the primary source of remuneration for the proposed business activity is outside Canada’s territory; and
(b) the Business Visitor’s principal place of business and the actual place of accrual of profits predominantly remain outside of Canada’s territory.
Research and Design
Technical, scientific, or statistical researchers conducting independent research or research for an enterprise located in the territory of the other Party.
Sales
Sales representatives or agents taking orders or negotiating contracts for goods or services for an enterprise located in the territory of the other Party but not delivering goods or providing services.
This includes buyers purchasing goods or services for an enterprise located in the territory of the other Party.
Tourism
Tourism personnel of an enterprise located in the territory of the other Party, including tour and travel agents, tour guides, or tour operators, attending or participating in conventions, or conducting a tour that begins in the territory of the other Party.
Translation
Translators or interpreters performing services for an enterprise located in the territory of the other Party. The Ecuadorian Business Visitor must comply with Canada’s immigration measures applicable to temporary entry.
B. Intra-Company Transferees
Canada’s commitments under this category apply to Ecuadorian business persons if Ecuador has made a reciprocal commitment in its Schedule for Intra-Company Transferees without reserving the right to impose or maintain an economic needs test or numerical restriction.
Description of Category Conditions and Limitations (including length of stay)
Intra-Company Transferee means a business person employed by an enterprise of the other Party who seeks to render services to that enterprise or its subsidiary or affiliate established in the territory of Canada as an executive, manager, or specialist as defined below:
(a) executive means a business person within an enterprise who:
(i) primarily directs the management of the enterprise or a major component or function of the enterprise;
(ii) establishes the goals and policies of the enterprise, or of a component or function of the enterprise; and
(iii) exercises wide latitude in decision-making and receives only general supervision or direction from higher-level executives, the board of directors or stockholders of the enterprise;
(b) manager means a business person within an enterprise who: