2. Each Party shall make available to interested persons its requirements for completing applications relating to the supply of financial services.
3. Upon request of an applicant, the Party concerned shall inform the applicant of the status of his/her application. Where the Party concerned requires additional information from the applicant, it shall notify the applicant without undue delay.
4. Each Party shall make its best endeavours to ensure that international standards for regulation and supervision in the financial services sector and for the fight against money laundering and the financing of terrorism are implemented and applied in its territory. Such international standards are the Core Principle for Effective Banking Supervision of the Basel Committee, the Insurance Core Principles and Methodology of the International Association of Insurance Supervisors, the Objectives and Principles of Securities Regulation of the International Organisation of Securities Commissions, the Forty Recommendations on Money Laundering, and the Nine Special Recommendations on Terrorist Financing of the Financial Action Task Force.
5. The Parties also take note of the "Ten Key Principles for Information Sharing" promulgated by the Finance Ministers of the G7 Nations and the Agreement on Exchange of Information on Tax Matters of the Organisation on Economic Cooperation and Development's (hereinafter referred to as "OECD") and the Statement on Transparency and exchange of information for tax purposes of the G20.
Article 156. New Financial Services
Each Party shall permit a financial service supplier of another Party established in its territory to supply any new financial service of a type similar to those services which that Party permits its own financial service suppliers to supply under its domestic law in like circumstances. A Party may determine the institutional and juridical form through which the new financial service may be supplied and may require authorisation for the supply of such service. Where such authorisation is required, a decision shall be made within a reasonable period of time and the authorisation may only be refused for prudential reasons.
Article 157. Data Processing
1. Each Party shall permit a financial service supplier of another Party to transfer information in electronic or other form, into and out of its territory, for data processing where such processing is required in the ordinary course of business of such financial service supplier.
2. Each Party shall adopt adequate safeguards for the protection of the right to privacy and the freedom from interference with the privacy, family, home or correspondence of individuals, in particular with regard to the transfer of personal data.
Article 158. Recognition of Prudential Measures
1. A Party may recognise prudential measures of any other country in determining how the measures relating to financial services of that Party shall be applied. Such recognition, which may be achieved through harmonisation or otherwise, may be based upon an agreement or arrangement with the country concerned, or may be granted autonomously.
2. A Party that is a party to such an agreement or arrangement referred to in paragraph 1, whether future or existing, shall afford adequate opportunity for another Party to negotiate its accession to such agreements or arrangements, or to negotiate comparable ones with such Party, under circumstances in which there would be equivalent regulation, oversight, implementation of such regulation and, if appropriate, procedures concerning the sharing of information between the Parties to the agreement or arrangement. Where a Party accords recognition autonomously, such Party shall afford adequate opportunity for another Party to demonstrate that those circumstances exist.
Article 159. Specific Exceptions
1. Nothing in this Title shall be construed to prevent a Party, including its public entities, from exclusively conducting or providing, in its territory, activities or services forming part of a public retirement plan or statutory system of social security, except when those activities may be carried out, as provided by the domestic regulation of that Party, by financial service suppliers in competition with public entities or private institutions.
2. Nothing in this Agreement applies to activities or measures conducted or adopted by a central bank or monetary, exchange rate or credit authority or by any other public entity in pursuit of monetary and related credit or exchange rate policies.
3. Nothing in this Title shall be construed to prevent a Party, including its public entities, from exclusively conducting or providing in its territory activities or services for the account or with the guarantee or using the financial resources of the Party, or its public entities.
Section 6. International Maritime Transport Services
Article 160. Scope of Application and Principles
1. This Section sets out the principles for international maritime transport services committed pursuant to Chapters 2 (Establishment), 3 (Cross-border Supply of Services) and 4 (Temporary Presence of Natural Persons for Business Purposes) of this Title.
2. In view of the existing levels of liberalisation between the Parties in international maritime transport, each Party shall:
(a) effectively apply the principle of unrestricted access to the international maritime markets and trades on a commercial and non-discriminatory basis; and
(b) grant ships flying the flag of another Party or operated by service suppliers of another Party treatment no less favourable than that accorded to its own ships with regard to, inter alia, access to ports, use of infrastructure and auxiliary maritime services of the ports, as well as related fees and charges, customs facilities and the assignment of berths and facilities for loading and unloading.
3. In applying these principles, each Party shall:
(a) not introduce cargo-sharing arrangements in future bilateral agreements with third countries concerning maritime transport services, including dry and liquid bulk and liner trade, and terminate, within a reasonable period of time, such cargo-sharing arrangements in case they exist in previous bilateral agreements; and
(b) upon entry into force of this Agreement, abolish and abstain from introducing any unilateral measures and administrative, technical and other obstacles which may constitute a disguised restriction or have discriminatory effects on the free supply of services in international maritime transport.
4. Each Party shall permit international maritime service suppliers, including maritime agency services of another Party, to have an establishment in its territory under conditions of establishment and operation no less favourable than those accorded to its own service suppliers or those of any third country, whichever are more favourable.
5. Each Party shall make available to international maritime transport suppliers of another Party, on reasonable and non-discriminatory terms and conditions, the following services at the port: pilotage, towing and tug assistance, provisioning, fuelling and watering, garbage collecting and ballast waste disposal, port captain's services, navigation aids, shore-based operational services essential to ship operations, including communications, water and electrical supplies, emergency repair facilities, anchorage, berth and berthing services.
Article 161. Definitions
For the purposes of this Section and Chapters 2 (Establishment), 3 (Cross-border Supply of Services) and 4 (Temporary Presence of Natural Persons for Business Purposes) of this Title:
- "container station and depot services" means activities consisting in storing containers, whether in port areas or inland, with a view to their stuffing/stripping, repairing and making them available for shipments;
- "customs clearance services" (alternatively "customs house brokers services") means activities consisting in carrying out, on behalf of another party, customs formalities concerning import, export or through transport of cargoes, whether such services are the main activity of the service provider or a usual complement of its main activity;
- "freight forwarding services" means the activity consisting in organising and monitoring shipment operations on behalf of shippers, through the acquisition of transport and related services, preparation of documentation and provision of business information;
- "international maritime transport" includes door-to-door and multi-modal transport operations, which is the carriage of goods using more than one mode of transport, involving a sea-leg, under a single transport document, and to this effect includes the right to directly contract with providers of other modes of transport;
- "maritime agency services" means activities consisting in representing as an agent, within a given geographic area, the business interests of one or more shipping lines or shipping companies, for the following purposes:
(a) marketing and sales of maritime transport and related services, from quotation to invoicing, and issuance of bills of lading on behalf of the companies, acquisition and resale of the necessary related services, preparation of documentation, and provision of business information; and
(b) organising, on behalf of shipping companies, the call of ships or take over cargoes when required;
- "maritime cargo handling services" means activities exercised by stevedore companies, including terminal operators, but not including the direct activities of dockers, when this workforce is organised independently of the stevedoring or terminal operator companies. The activities covered include the organisation and supervision of:
(a) the loading/discharging of cargo to/from a ship;
(b) the lashing/unlashing of cargo; and
(c) the reception/delivery and safekeeping of cargoes before shipment or after discharge.
Chapter 6. Electronic Commerce
Article 162. Objective and Principles
1. The Parties, recognising that electronic commerce increases trade opportunities in many sectors, agree to promote the development of electronic commerce between them, in particular by cooperating on issues arising from electronic commerce under the provisions of this Title.
2. The Parties agree that the development of electronic commerce shall be consistent with the international standards of data protection, in order to ensure the confidence of users of electronic commerce.
3. The Parties agree that a delivery by electronic means shall be considered as a provision of services, within the meaning of Chapter 3 (Cross-border Supply of Services), and shall not be subject to customs duties.
Article 163. Regulatory Aspects of Electronic Commerce
1. The Parties shall maintain a dialogue on regulatory issues arising from electronic commerce which shall inter alia address the following issues:
(a) the recognition of certificates of electronic signatures issued to the public and the facilitation of cross-border certification services;
(b) the liability of intermediary service providers with respect to the transmission, or storage of information;
(c) the treatment of unsolicited electronic commercial communications;
(d) the protection of consumers in the field of electronic commerce from, among others, fraudulent and misleading commercial practices in the cross border context;
(e) the protection of personal data;
(f) the promotion of paperless trading; and
(g) any other issue relevant for the development of electronic commerce.
2. The Parties shall conduct such cooperation, inter alia, by exchanging information regarding their respective relevant legislation and jurisprudence, as well as on the implementation of such legislation.
Article 164. Protection of Personal Data
The Parties shall endeavour, insofar as possible, and within their respective competences, to develop or maintain, as the case may be, regulations for the protection of personal data.
Article 165. Management of Paperless Trading
The Parties shall endeavour, insofar as possible, and within their respective competences, to:
(a) make trade management documents available to the public in electronic form; and
(b) accept trade administration documents (61) submitted electronically as the legal equivalent of their paper version.
Article 166. Consumer Protection
1. The Parties recognise the importance of maintaining and adopting transparent and effective measures to protect consumers from fraudulent and misleading commercial practices when consumers engage in electronic commerce transactions.
2. The Parties recognise the importance of reinforcing consumer protection and of cooperation among domestic consumer protection authorities, in activities relating to electronic commerce.
Chapter 7. Exceptions
Article 167. General Exceptions
1. Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between the Parties, or a disguised restriction on establishment or cross-border supply of services, nothing in this Title and Title V (Current Payments and Capital Movements) shall be construed to prevent the adoption or enforcement by any Party of measures:
(a) necessary to protect public security or public morals or to maintain public order (62);
(b) necessary to protect human, animal or plant life or health, including those environmental measures necessary to this effect;
(c) relating to the conservation of living and non-living exhaustible natural resources, if such measures are applied in conjunction with restrictions on domestic investors or on the domestic supply or consumption of services;
(d) necessary for the protection of national treasures of artistic, historic or archaeological value;
(e) necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Title and Title V (Current Payments and Capital Movements) (63) including those relating to:
(i) the prevention of deceptive and fraudulent practices or to deal with the effects of a default on contracts;
(ii) the protection of the privacy of individuals in relation to the processing and dissemination of personal data and the protection of confidentiality of individual records and accounts;
(iii) safety.
2. The provisions of this Title, Annexes VII (List of Commitments on Establishment) and VIII (List of Commitments on Cross-border Supply of Services) and Title V (Current Payments and Movement of Capital) shall not apply to the respective social security systems of the Parties or to activities in the territory of each Party, which are connected, even occasionally, with the exercise of official authority.
Title V. Current Payments and Capital Movements
Article 168. Current Account
The Parties shall authorise, in freely convertible currency and in accordance with the provisions of Article VIII of the Articles of Agreement of the International Monetary Fund, any payments and transfers on the current account of balance of payments between the Parties.
Article 169. Capital Account
With regard to transactions on the capital and financial account of balance of payments, following the entry into force of this Agreement, the Parties shall ensure the free movement of capital relating to direct investments (64) made in juridical persons constituted in accordance with the laws of the host country and investments and other transactions made in accordance with the provisions of Title IV (Trade in Services, Establishment, and Electronic Commerce) (65), as well as the liquidation and repatriation of these investments and of any profit stemming therefrom.
Article 170. Safeguard Measures
1. In the case of Colombia, where, in exceptional circumstances, payments and capital movements cause, or threaten to cause, serious difficulties for the operation of exchange rate policy or monetary policy in Colombia, Colombia may adopt safeguard measures with regard to capital movements for a period not exceeding one year. These safeguard measures may be maintained beyond such period of time for justified reasons when it is necessary to overcome the exceptional circumstances that led to their application. In such event, Colombia shall present in advance to the other Parties the reasons that justify their maintenance.
2. In the case of Peru and the EU Party, where, in exceptional circumstances, payments and capital movements, cause, or threaten to cause, serious difficulties for the operation of exchange rate policy or monetary policy in Peru or in the European Union, Peru or the EU Party may respectively adopt safeguard measures with regard to capital movements for a period not exceeding one year.
2a. In the case of Ecuador, where, in exceptional circumstances, payments and capital movements cause, or threaten to cause, serious difficulties to the liquidity of the Ecuadorian economy, Ecuador may adopt safeguard measures with regard to capital movements for a period not exceeding one year. These safeguard measures may be maintained beyond such period of time for justified reasons when it is necessary to overcome the exceptional circumstances that led to their application. In such event, Ecuador shall present in advance to the other Parties the reasons that justify their maintenance.
3. The application of safeguard measures pursuant to paragraph 2 may be extended through their formal reintroduction in case of extremely exceptional circumstances and after having coordinated in advance between the Parties concerned regarding the implementation of any proposed formal reintroduction.
4. Under no circumstance may the measures referred to in paragraphs 1, 2 and 2a be used as a means for commercial protection or for the purpose of protecting a particular industry.
5. A Party adopting or maintaining safeguard measures pursuant to paragraphs 1, 2, 2a or 3 shall promptly inform the other Parties of their relevance and scope, and present, as soon as possible, a schedule for their removal.
Article 171. Final Provisions
With the aim of supporting a stable and secure framework for long-term investment, the Parties shall consult with a view to facilitating the movement of capital between them, in particular the progressive liberalisation of capital and financial accounts.
Title VI. Government Procurement
Article 172. Definitions
For the purposes of this Title:
- "build-operate-transfer contract and public works concession contract" mean any contractual arrangement the primary purpose of which is to provide for the construction or rehabilitation of physical infrastructure, plant, buildings, facilities, or other government-owned works and under which, as consideration for a supplier's execution of a contractual arrangement, a procuring entity grants to the supplier, for a specified period, temporary ownership, or a right to control and operate, and demand payment for the use of, such works for the duration of the contract;
- "commercial goods or services" means goods or services of a type generally sold or offered for sale in the commercial marketplace to, and customarily purchased by, non-governmental buyers for non-governmental purposes;
- "construction service" means a service that has as its objective the realization by whatever means, of civil or building works, based on Division 51 of the United Nations Provisional Central Product Classification (hereinafter referred to as "CPPC");
- "electronic auction" means an iterative process that involves the use of electronic means for the presentation by suppliers of either new prices, or new values for quantifiable non-price elements of the tender related to the evaluation criteria, or both, resulting in a ranking or re-ranking of tenders;
- "in writing" or "written" means any worded or numbered expression that can be read, reproduced and later communicated. It may include electronically transmitted and stored information;
- "limited tendering" means a procurement method whereby the procuring entity contacts a supplier or suppliers of its choice;
- "measure" means any law, regulation, procedure, administrative guidance or practice, or any action of a procuring entity, relating to a covered procurement;
- "multi-use list" means a list of suppliers that a procuring entity has determined satisfy the conditions for participation in that list, and that the procuring entity intends to use more than once;
- "notice of intended procurement" means a notice published by a procuring entity inviting interested suppliers to submit a request for participation, a tender, or both;
- "offset" means any condition or undertaking that encourages local development or improves balance–of-payments accounts of a Party, such as the use of domestic content, the licensing of technology, investment, counter-trade and similar action or requirement;
- "open tendering" means a procurement method whereby all interested suppliers may submit a tender;
- "procuring entity" means an entity of a Party listed in Appendix 1 of Annex XII (Government Procurement);
- "qualified supplier" means a supplier that a procuring entity recognises as having satisfied the conditions for participation;
- "selective tendering" means a procurement method whereby only qualified suppliers are invited by the procuring entity to submit a tender;
- "services" includes construction services, unless otherwise specified; and
- "technical specification" means a tendering requirement that:
(a) sets out the characteristics of goods or services to be procured, including quality, performance, safety and dimensions, or the processes and methods for their production or provision; or
(b) addresses terminology, symbols, packaging, marking or labelling requirements, as they apply to a good or service.
Article 173. Scope of Application
1. This Title applies to any measure adopted by a Party regarding covered procurement.
2. For the purposes of this Title, "covered procurement" means procurement for governmental purposes of goods, services, or any combination thereof as specified, with respect to each Party, in Appendix 1 of Annex XII (Government Procurement):
(a) not procured with a view to commercial sale or resale, or for use in the production or supply of goods or services for commercial sale or resale;
(b) by any contractual means, including: purchase, hire purchase, lease or rental, with or without an option to buy, build-operate-transfer contracts and public works concession contracts;
(c) for which the value equals or exceeds the relevant threshold specified for each Party in Appendix 1 of Annex XII (Government Procurement), at the time of publication of a notice in accordance with Article 176;
(d) by a procuring entity; and
(e) that is not otherwise excluded from the scope of application of this Title.
3. Except where provided otherwise, this Title does not apply to:
(a) the acquisition or rental of land, existing buildings or other immovable property or the rights thereon;
(b) non-contractual agreements or any form of assistance that a Party provides, including cooperative agreements, grants, loans, subsidies, equity infusions, guarantees, endorsements and fiscal incentives;
(c) the procurement or acquisition of fiscal agency or depository services, liquidation and management services for regulated financial institutions, or services related to the sale, redemption and distribution of public debt, including loans and government bonds, notes and other securities (66);
(d) public employment contracts and related measures; and
(e) procurement conducted:
(i) for the specific purpose of providing international assistance, including development aid;
(ii) under the particular procedure or condition of an international agreement relating to:
(A) the stationing of troops; or
(B) the joint implementation of a project by the countries signatory to such agreement;
(iii) under the particular procedure or condition of an international organisation, or funded by international grants, loans or other assistance, where the applicable procedure or condition would be inconsistent with this Title.
4. Each Party shall specify the following information in its corresponding Subsection of Appendix 1 of Annex XII (Government Procurement):
(a) in Subsection 1, the central government entities whose procurement is covered by this Title;
(b) in Subsection 2, the sub-central government entities whose procurement is covered by this Title;
(c) in Subsection 3, all other entities whose procurement is covered by this Title;
(d) in Subsection 4, the goods covered by this Title;
(e) in Subsection 5, the services, other than construction services, covered by this Title;
(f) in Subsection 6, the construction services covered by this Title; and
(g) in Subsection 7, any General Notes.
5. Where a procuring entity, in the context of covered procurement, requires persons not covered under Appendix 1 of Annex XII (Government Procurement) of a Party to procure in accordance with particular requirements, Article 175 shall apply mutatis mutandis to such requirements.
Valuation
6. In estimating the value of a procurement for the purpose of ascertaining whether it is a covered procurement, a procuring entity shall neither divide a procurement into separate procurements nor select or use a particular valuation method for estimating the value of a procurement with the intention of totally or partially excluding it from the application of this Title.
7. A procuring entity shall include the estimated maximum total value of the procurement over its entire duration, whether awarded to one or more suppliers, taking into account all forms of remuneration, including premiums, fees, commissions, and interest. Where the procurement provides for the possibility of option clauses, the procuring entity shall include the estimated maximum total value of the procurement, inclusive of optional purchases.
8. Where an individual requirement for a procurement results in the award of more than one contract, or in the award of contracts in separate parts (hereinafter referred to as "recurring procurements"), the calculation of the estimated maximum total value shall be based on:
(a) the total maximum value of the procurement over its entire duration; or
(b) the value of recurring procurements of the same type of good or service awarded during the preceding 12 months or preceding fiscal year of the procuring entity, adjusted, where possible, to take into account anticipated changes in the quantity or value of the good or service being procured over the following 12 months; or