c) To international arbitration:
i) The ICSID if both parties are members of this; or
ii) The rules of the additional facility for the administration of conciliation or arbitration proceedings and Fact-Finding by the secretariat of ICSID, where one of the Parties is not a member of the ICSID; or
iii) The arbitration in accordance with the rules of the United Nations Commission on International Trade Law (UNCITRAL, in the event that no party is a member of the ICSID. To this end, each party consents to advance and irrevocably any difference cannot be referred to arbitration.
3. Once the investor has submitted the dispute to the competent court of the Party in whose territory the investment has been made or an arbitral tribunal, the choice of one or other of the procedure shall be final.
4. The arbitral tribunal shall decide on the basis of:
a) The provisions of this Treaty and other agreements concluded between the parties;
b) The national law of the Party in whose territory the investment was made, including the terms of any specific agreement concluded in relation to the investment; and
c) The rules and the universally accepted principles of international law.
5. The arbitral awards shall be final and binding upon the parties to the dispute and shall be executed in accordance with the domestic law of the Party in whose territory the investment has been made.
6. The parties shall treat through diplomatic channels matters related to disputes submitted to court proceedings or to arbitration in accordance with this article, until the relevant processes are completed, except where the other party to the dispute has failed to comply with the court decision or arbitral tribunal's decision on the terms established in the respective decision or judgement and in accordance with domestic law.
ANNEX ARTICLE 9.11
For the purposes of subparagraph (a) of article 9.11 shall be covered by the term public interest to:
Costa Rica: public Interest legally established;
El Salvador: public purpose or social interest;
Guatemala: usefulness collective social interest or public interest;
Honduras: public need or interest;
Nicaragua: public purpose or social interest; and
Dominican Republic: public purpose or social interest.
Chapter X. Trade In Services
Article 10.01. Objective
This chapter is intended to establish a framework for the liberalization of trade in services between the parties in accordance with the General Agreement on Trade in Services (GATS) of the WTO Agreement. This framework will promote the interests of the Parties, on the basis of mutual benefit and the achievement of an overall balance of rights and obligations between the parties.
Article 10.02. Definitions
1. For the purposes of this chapter:
Trade in services: it means the supply of a service in any sector through the following modes of delivery:
From the territory of one party to the territory of another party;
In the territory of a party to a consumer of the other party;
By a service supplier of a Party through commercial presence in the territory of the other party; and
By a service supplier through presence of natural persons of a Party in the territory of another party;
Services means any service in any sector except services supplied in the exercise of governmental authority;
A service supplied in the exercise of governmental authority means any service supplied by a public institution, which is supplied neither on a commercial basis nor in competition with one or more service suppliers;
The supply of a service: the production, distribution, sale and delivery of a service;
Commercial presence means any type of business or professional through, inter alia, the Constitution, acquisition or retention of a legal person, as well as branches and Representative Offices located in the territory of a party, in order to provide a service;
Service of another party means a service supplied:
From or in the territory of that other party; or
By a service supplier of that other party through commercial presence or through the presence of natural persons;
Service supplier means any person that supplies a service;
Consumer service means any person that receives or uses a service;
Natural person of another party means a national of the other party;
Juridical person of another party means a juridical person constituted or organized under the law of that other party and to develop or schedule develop substantive business operations in the territory of that Party or any other party;
Specialty air services means services air, surveying, mapping aerial photography, control of forest fires, aerial firefighting services, advertising, towing planeadores, parachutists, air services for construction, air transport sawn timber, flights overview, training, inspection and monitoring and aerial spraying air.
2. Any definition that is not contained in paragraph 1 of this article shall be the definitions contained in the GATS of the WTO Agreement.
Article 10.03. Scope
This chapter shall apply to measures that a party adopts or maintains on trade in services of another party, including those relating to:
The production, distribution, marketing, sale and delivery of a service;
The purchase or use of a service;
The access to services offered to the public generally limitation of use of the Parties, and in connection with the supply of a service;
The presence of natural persons of a party into the territory of another party for the supply of a service; and
The provision of a bond or other form of financial security as a condition for the supply of a service.
This chapter shall not apply to:
Promoting and encouraging measures granted by a party or a state enterprise, including loans and guarantees and insurance, donations and fiscal incentives granted by the Governments of the Parties;
Air services including domestic and international air transportation, with or without routing equipment and ancillary activities in support of air services except:
Maintenance services and repair of aircraft during the period
An aircraft is withdrawn from service;
Air and specialty services;
Computer reservation systems;
Governmental functions or services, including but not limited to, the enforcement of laws, rehabilitation, social security insurance or insurance on income security or public social welfare, education, training and public health care for children.
3. Nothing in this chapter shall be construed as:
a) Impose any obligation on a Party with respect to a national of another party seeking access to its employment market or who is permanently employed in its territory, or confer any right on that with respect to that national access or employment; or
b) Impose any obligations or confer any right on a Party with respect to government procurement by the other party, except as provided in paragraph 3 of Article 12.02.
4. For purposes of this chapter "measures taken by the parties" means any provision, whether in the form of law, decree, regulation, rule, procedure, administrative decision, or in any other manner with effect on trade in services, taken by:
a) Governments and central authorities, regional, provincial, departmental, municipal or local; or
b) Non-governmental bodies in the exercise of powers delegated by the authorities referred to in subparagraph (a) above.
5. In respect of non-governmental bodies referred to in paragraph 4 (b) of this article, to exercise powers or other governmental and administrative regulations which have been granted in accordance with the legislation of each party, the Central Government shall take such reasonable measures as may be available to it to ensure that they comply with the provisions of this chapter.
6. The provisions of this chapter shall apply to measures relating to the services referred to in annex on professional services, only to the extent and terms set out in that annex.
Article 10.04. Most Favoured Nation Treatment
Each Party shall accord immediately and unconditionally to services and service suppliers of another party treatment no less favourable than that accorded to like services and service suppliers of any other country.
The provisions of this chapter shall not be construed to prevent a party advantages accorded to adjacent countries in order to facilitate exchanges limited to contiguous frontier zones of services that are produced or consumed locally.
Article 10.05. Transparency
Each Party shall promptly publish and shall report to the Committee on Trade in Services and each Party shall, no later than the date of its Entry into Force, all measures which relate to or affect the operation of this chapter. It shall also, and publish international agreements pertaining to or affecting trade in services to which a Party is a signatory.
Where it is not practicable or practically the publication of the information referred to in the preceding paragraph, the Parties shall make every effort to be required to make them available to the public.
Each Party shall promptly notify the other parties on the Entry into Force of new laws, regulations or administrative guidelines, or any amendments to existing significantly affecting trade in services.
Each Party shall respond promptly to all requests for specific information made by the other parties of the measures specified in paragraph 1 of this article.
For the purposes of implementing the provisions of this article, the Parties shall use the information services nationally established pursuant to paragraph 4 of article III of the GATS of the WTO Agreement.
Article 10.06. Disclosure of Confidential Information
Nothing in this chapter shall be construed to impose obligations on the parties to provide confidential information the disclosure of which would impede law enforcement or otherwise be contrary to the public interest or would prejudice the legitimate commercial interests of state enterprises or private.
Article 10.07. Domestic Regulation
With a view to ensuring that any measure that adopts or maintains a Party with respect to the requirements and procedures for the granting of licences and permits and authorizations to nationals of the other party does not constitute an unnecessary barrier to trade, each Party shall endeavour to ensure that such measure:
a) Based on objective and transparent criteria, such as the capacity, competence and the ability to provide a service;
b) Not more burdensome than necessary to ensure the quality of a service; and
c) Do not constitute a disguised restriction on the supply of a service.
Article 10.08. General Exceptions
Notwithstanding this and other chapters of this Treaty, the Parties may adopt measures or apply for:
To protect public morals or to maintain public order;
Protection of life and health of humans, animals, plants and conserve the environment;
The protection of national security;
Ensure compliance with laws and regulations relating to:
The prevention of practices which lead to errors and fraudulent practices or to lead to a breach of contracts for the purpose of providing services to natural or juridical persons of the Parties;
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; or
Public security;
e) The protection of national treasures of artistic, historical or archaeological.
The measures referred to in this article shall not be applied in a manner which would constitute a subregional or restriction on trade in services, or a means of discrimination between countries or not parties to the Treaty of this chapter, in which prevails similar conditions.
Article 10.09. Restrictions to Safeguard the Balance of Payments
In case of any financial difficulties or threat of serious balance of payments or external, a Party may adopt or maintain restrictions on trade in services with respect to measures covered by articles 10.04, 10.10 and 10.12 and paragraph 1 of Article 10.13, including on payments or transfers for transactions relating to sectors affected by such measures. It is recognised that particular pressures on the balance of payments may need the use of restrictions to achieve, inter alia, the maintenance of a adequate level of financial reserves for the implementation of its programme of economic development or economic transition.
The restrictions referred to in paragraph 1 above:
Shall not discriminate between the parties;
Shall be consistent with the Articles of Agreement of the International Monetary Fund (IMF);
They shall avoid unnecessary damage the economic, commercial and financial interests of the Parties;
Shall not exceed what is necessary to deal with the circumstances described in paragraph 1 above; and
They shall be temporary and be phased out progressively as the situation improves referred to in paragraph 1 above.
In determining the incidence of such restrictions, the parties may give priority to the supply of services which are more necessary to their economic or development programmes, but such restrictions shall not be adopted or maintained for the purpose of protecting a particular service sector.
Restrictions adopted or maintained under paragraph 1 above, or any changes that may be made, shall be notified promptly to the parties.
5. (a) the parties that implement the provisions of this article shall promptly consult on the restrictions adopted pursuant to those provisions.
The Council shall establish procedures for the periodic consultations in order to be able to make recommendations to the Party concerned as it deems appropriate.
In such consultations shall assess the balance of payments situation of the Party concerned and the restrictions adopted or maintained under this Article, taking into account, inter alia, factors such as:
The nature and scope of the external financial difficulties; and balance of payments
The external economic and trading environment of the consulting Party;
Alternative corrective measures which may be used.
The consultations shall examine the conformity of restrictions that are applied in accordance with paragraph 2 of this article, in particular as regards the progressive elimination of the same in accordance with subparagraph (e) of this paragraph.
In such consultations shall be accepted all findings of statistical or other IMF present on issues of change, monetary reserves and balance of payments and the conclusions shall be based on the assessment by the IMF of the financial position and external balance of payments of a Party in the consultations.
Article 10.10. Local Presence
No Party shall require a service provider of the other party to establish or maintain a representative office or other company or resident in its territory as a condition for the supply of a service.
Article 10.11. Non-discriminatory Quantitative Restrictions
No later than six (6) months after the date of Entry into Force of this Treaty, each Party shall establish a list of existing measures that constitute non-discriminatory quantitative restrictions.
Periodically, at least once every two (2) years, the Parties shall endeavour to negotiate for liberalizing or eliminate:
Existing quantitative restrictions maintained by a party, the list referred to in paragraph 1 above; or
Quantitative restrictions adopted by a Party after the Entry into Force of this Treaty.
Each Party shall notify the other party of any measure constitutes a quantitative restriction that is non-discriminatory, adopted after the Entry into Force of this Treaty, and shall set out the restriction in the list referred to in paragraph 1 of this article.
Article 10.12. National Treatment
Each Party shall accord to services and service suppliers of the other party treatment no less favourable than that accorded to its own like services or service suppliers.
Article 10.13. Consolidation of Measures
From the date of Entry into Force of this Treaty, any party increase the degree of inconsistency of their existing measures with respect to articles 10.04, 10.10 and 10.12. Any reform of any of these measures does not decrease the level of conformity of the measure as it was in force immediately before the amendment.
No later than six (6) months after the date of Entry into Force of this Treaty, the Parties shall exchange a list of measures that do not conform with articles 10.04, 10.10 and 10.12.
Article 10.14. Denial of Benefits
A Party may deny the benefits of this chapter to a service supplier of another party, subject to prior notification and consultation, where the party establishes that the service is being supplied by an enterprise that has no substantive business operations in the territory of the other party and that, in accordance with the legislation of each country, is owned or controlled by persons of a non-party.
Article 10.15. Future Liberalization
Through future negotiations to be convened by the Council, the parties reached the deepen liberalization in services sectors with a view to achieving the elimination of the remaining restrictions listed in accordance with article 10.11 and paragraph 2 of article 10.13.
Article 10.16. Committee on Trade In Services
1. The Committee on Trade in Services, comprising representatives from the relevant authorities of each party. It may also include representatives of other institutions where the responsible authorities as appropriate.
2. The Committee shall have the following functions:
Monitor the implementation and administration of this chapter;
Consider matters relating to trade in services that are submitted by either party;
On Trade in Services discuss matters of interest to the Parties;
Discuss issues related to these matters discussed in other international fora;
To facilitate the exchange of information between the parties and cooperate in the field of advice on trade in services; and
Create convene working groups or panels of experts on matters of mutual interest to the parties.
3. The Committee shall meet at least once a year, or at any time upon the request of either party.
Article 10.17. Dispute Settlement
Any dispute which may arise in the implementation of this chapter shall be settled in accordance with chapter XVI (dispute settlement).
Article 10.18. Relationship with Multilateral Agreements on Services
The parties undertake to apply themselves among the provisions contained in the multilateral agreements to which the parties are members.
Notwithstanding paragraph 1 above, in the event of any inconsistency between this Agreement and this chapter, the latter shall prevail over those.
Article 10.19. Anti-competitive Business Practices
With respect to the anti-competitive business practices adversely affecting competition and / or trade in services between and / or within the parties shall apply the provisions on competition each party, as well as on the same competition rules established through international conventions.
Article 10.20. Future Work
The Committee on Trade in Services shall determine inter alia the procedures for the establishment of necessary disciplines relating to:
Emergency safeguard measures; and
Trade-distorting subsidies services.
The Committee on Trade in Services may delegate with specificity and temporary working groups; discussing matters relating to the harmonization of regulations on specific services sectors.
For purposes of paragraphs 1 and 2 of this article shall be taken into account in the work of relevant international bodies.