(a) the number of service providers, whether in the form of a quota, a monopoly or an economic needs test, or by any other quantitative means; or
(b) the operations of any service provider, whether in the form of a quota or an economic needs test, or by any other quantitative means;
service provider of a Party means a person of a Party that seeks to provide or provides a service; and
specialty air services means aerial mapping, aerial surveying, aerial photography, forest fire management, fire fighting, aerial advertising, glider towing, parachute jumping, aerial construction, heli-logging, aerial sightseeing, flight training, aerial inspection and surveillance, and aerial spraying services.
2. A reference to a national or federal or state government includes any non-governmental body in the exercise of any regulatory, administrative or other governmental authority delegated to it by that government.
Article 10-02. Scope and Coverage
1. This Chapter applies to measures adopted or maintained by a Party relating to cross-border trade in services by service providers of the other Party, including measures respecting:
(a) the production, distribution, marketing, sale and delivery of a service;
(b) the purchase or use of, or payment for, a service;
(c) the access to and use of distribution and transportation systems in connection with the provision of a service;
(d) the presence in its territory of a service provider of the other Party; and
(e) the provision of a bond or other form of financial security as a condition for the provision of a service.
2. For the purposes of this Chapter, measures adopted or maintained by a Party are measures adopted or maintained by:
(a) the national or federal or state governments;
(b) any non-governmental body in the exercise of any regulatory, administrative or other governmental authority delegated to it by that government.
3. This Chapter does not apply to:
(a) cross-border trade in financial services;
(b) air services, including domestic and international air transportation services, whether scheduled or non-scheduled, and related services in support of air services, other than
(i) aircraft repair and maintenance services during which an aircraft is withdrawn from service,
(ii) specialty air services, and
(ii) computerized reservation systems;
(c) procurement by a Party or a State enterprise; or
(d) subsidies or grants provided by a Party or a State enterprise, including government-supported loans, guarantees and insurance.
4. Nothing in this Chapter shall be construed to:
(a) impose any obligation on a Party with respect to a national of the other Party seeking access to its employment market, or employed on a permanent basis in its territory, or to confer any right on that national with respect to that access or employment; or
(b) prevent a Party from providing a service or performing a function such as law enforcement, correctional services, income security or insurance, social security, social welfare, public education, public training, health, and child care, in a manner that is not inconsistent with this Chapter.
Article 10-03. National Treatment
1. Each Party shall accord to service providers of the other Party treatment no less favourable than that it accords, in like circumstances, to its own service providers.
2. The treatment accorded by a Party under paragraph 1 means, with respect to a state, treatment no less favourable than the most favourable treatment accorded, in like circumstances, by that state to service providers of the Party of which it forms a part.
Article 10-04. Most-Favoured-Nation Treatment
Each Party shall accord to service providers of the other Party treatment no less favourable than it accords, in like circumstances, to service providers of a non-Party country.
Article 10-05. Standard of Treatment
Each Party shall accord to service providers of the other Party the better of the treatment required by Articles 10-03 and 10-04.
Article 10-06. Local Presence
Neither Party may require a service provider of the other Party to establish or maintain a representative office or any form of enterprise, or to be resident, in its territory as a condition for the cross-border provision of a service.
Article 10-07. Reservations
1. Articles 10-03, 10-04 and 10-06 do not apply to:
(a) any existing non-conforming measure that is maintained by:
(i) a Party at the national or federal or state level, as set out in its Schedule to Annex I, or
(ii) a local government;
(b) the continuation or prompt renewal of any non-conforming measure referred to in subparagraph (a); or
(c) an amendment to any non-conforming measure referred to in subparagraph (a) to the extent that the amendment does not decrease the conformity of the measure, as it existed immediately before the amendment, with Articles10-03, 10-04 and 10-06.
2. Articles 10-03, 10-04 and 10-06 do not apply to any measure that a Party adopts or maintains with respect to sectors, subsectors or activities, as set out in its Schedule to Annex II.
Article 10-08. Quantitative Restrictions
1. Each Party shall set out in its Schedule to Annex V any quantitative restriction that it maintains at the national or federal or state level.
2. Each Party shall notify the other Party of any quantitative restriction that it adopts after the date of entry into force of this Agreement and shall set out the restriction in its Schedule to Annex V.
3. The Parties shall periodically, but in any event at least every two years, endeavour to negotiate the liberalization or removal of the quantitative restrictions set out in Annex V pursuant to paragraphs 1 and 2.
Article 10-09. Future Liberalization
Through future negotiations to be arranged by the Commission, the Parties shall seek further liberalization in the different services sectors, with a view to eliminating the remaining restrictions in the Schedules mentioned in Article 10-07(1) and (2). Article 10-10 Liberalization of Non-Discriminatory Measures
Each Party shall set out in its Schedule to Annex VI its commitments to liberalize quantitative restrictions, licensing requirements, performance requirements or other non-discriminatory measures.
Article 10-11. Procedures
The Parties shall establish procedures for:
(a) a Party to notify and include in its relevant Schedule:
(i) commitments pursuant to Article 10-10,
(ii) amendments of measures referred to in Article 10-07(1) and (2), and
(iii) quantitative restrictions in accordance with Article 10-08; and
(b) consultations on reservations, quantitative restrictions or commitments with a view to further liberalization.
Article 10-12. Licensing and Certification
1. With a view to ensuring that any measure adopted or maintained by a Party relating to the licensing or certification of nationals of the other Party does not constitute an unnecessary barrier to trade, each Party shall endeavour to ensure that any such measure:
(a) is based on objective and transparent criteria, such as competence and the ability to provide a service;
(b) is not more burdensome than necessary to ensure the quality of a service; and
(c) does not constitute a disguised restriction on the cross-border provision of a service.
2. Where a Party recognizes, unilaterally or by agreement, education, experience, licences or certifications obtained in the territory of the other Party or of a non-Party:
(a) nothing in Article 10-4 shall be construed to require the Party to accord such recognition to education, experience, licences or certifications obtained in the territory of the other Party; and
(b) the Party shall afford the other Party an adequate opportunity to demonstrate that education, experience, licences or certifications obtained in the other Party's territory should also be recognized or to conclude an agreement or arrangement of comparable effect.
3. Each Party shall, after the date of entry into force of this Agreement, eliminate any citizenship or permanent residency requirement set out in its Schedule to Annex I that it maintains for the licensing or certification of professional service providers of the other Party. Where a Party does not comply with this obligation with respect to a particular sector, the other Party may, in the same sector and for such period as the non-complying Party maintains its requirement, solely have recourse to adopting or maintaining an equivalent requirement.
4. The Parties shall consult periodically with a view to determining the feasibility of removing any remaining citizenship or permanent residency requirement for the licensing or certification of each other's service providers.
5. Annex 10-12 establishes procedures for the recognition of education, experience and other standards and requirements governing professional service providers.
Article 10-13. Denial of Benefits
Subject to prior notification and consultation in accordance with Articles 16- 04 (Notification and Provision of Information) and 18-04 (Consultations), a Party may deny the benefits of this Chapter to a service provider of the other Party where the Party establishes that the service is being provided by an enterprise that is owned or controlled by persons of a non-Party and that has no substantial business activities in the territory of the other Party.
Article 10-14. Committee on Investment and Cross-Border Trade In Services
The Committee on Investment and Cross-Border Trade in Services shall perform the functions established in Article 9-40 (Committee on Investment and Cross-Border Trade in Services).
Chapter 11. AIR TRANSPORTATION SERVICES
Article 11-01. Definitions
For the purposes of this Chapter,
Convention means the Convention on Air Transportation between the Government of the Republic of Chile and the Government of the United Mexican States signed on 14 January 1997, or its successor.
Article 11-02. Scope and Coverage
Except as provided in this Chapter, Chapter 17 (Administration of the Agreement), Chapter 19 (Exceptions) and Chapter 20 (Final Provisions), this Agreement does not apply to air transportation services and the Parties shall abide by the provisions of the Convention.
Article 11-03. Consolidation
No modification made in accordance with Article 17 (Consultation and Modification) of the Convention shall restrict rights with respect to the situation existing in the Convention.
Article 11-04. Dispute Settlement
1. Disputes between the Parties regarding the interpretation or application of this Chapter or the Convention shall be settled in accordance with Chapter 18 (Dispute Settlement) of this Agreement, with the modifications established in this Article.
2. Where one Party claims that a dispute has arisen under paragraph 1, Article 18-09 (Panel Selection) shall be applicable, except that:
(a) the arbitral panel shall comprise three members;
(b) all members of the arbitral panel shall comply with the requisites established in (c) and (d);
(c) the Parties shall establish by consensus, no later than 1 January 1999, a roster of up to 10 individuals, who are willing and able to serve as panellists in air transportation services disputes. The roster may be modified every three years; and
(d) the roster members shall:
(i) have specialized knowledge of or practical experience in air transportation services,
(ii) be chosen strictly on the basis of their objectivity, reliability and sound judgement, and
(iii) comply with the requirements established in Article 18- 07(2)(c) and (d) (Roster).
3. Until such time as the roster referred to in Article 11-04(2)(c) is established, the Parties shall apply Article 20-10(3) (Revocations and Transitory Provisions).
Article 11-05. Committee on Air Transportation
1. The Parties establish a Committee on Air Transportation comprised of the representatives of each Party mentioned in Annex 11-05.
2. The Committee shall convene at least once a year to ensure the application of this Chapter and shall prepare a report to be presented to the Free Trade Commission.
3. The Committee may discuss other matters related to scheduled and non- scheduled air transportation between the Parties and any other appropriate matter.
Article 11-06. Convention
The Parties set aside the following provisions of the Convention:
(a) those relating to dispute settlement, including Article 18 (Dispute Settlement); and
(b) Article 20 (Termination). Article 11-07 Entry into Force
The rights and obligations of this Chapter shall enter into force when the Parties have complied with Article 21 (Entry into Force) of the Convention.
Chapter 12. TELECOMMUNICATIONS
Article 12-01. Definitions
For the purposes of this Chapter:
authorized equipment means terminal or other equipment that has been approved for attachment to the public telecommunications transport network in accordance with a Party's conformity assessment procedures;
conformity assessment procedure means "conformity assessment procedure" as defined in Article 8-01 (Definitions) and includes the procedures referred to in Annex 12-01;
enhanced or value-added services means those telecommunications services employing computer processing applications that:
(a) act on the format, content, code, protocol or similar aspects of a customer's transmitted information;
(b) provide a customer with additional, different or restructured information; or
(c) involve customer interaction with stored information;
intracorporate communications means telecommunications through which an enterprise communicates:
(a) internally or with or among its subsidiaries, branches or affiliates, as defined by each Party; or
(b) on a non-commercial basis with other persons that are fundamental to the economic activity of the enterprise and that have a continuing contractual relationship with it,
but does not include telecommunications services provided to persons other than those described herein;
monopoly means an entity, including a consortium or government agency, that in any relevant market in the territory of a Party maintains or is designated as the sole provider of public telecommunications transport networks or services;
network termination point means the final demarcation of the public telecommunications transport network at the customer's premises;
private telecommunications transport network means a telecommunications transport network that is used exclusively for intracorporate communications or between predetermined individuals;
protocol means a set of rules and formats that govern the exchange of information between two peer entities for pumposes of transferring signalling or data information;
public telecommunications transport network means the telecommunications transport network used to commercially operate telecommunications services to meet the needs of the public generally, not including the terminal equipment of customers or telecommunications transport networks beyond the network termination point;
public telecommunications transport service means any telecommunications transport service required by a Party, explicitly or in effect, to be offered to the public generally, including telegraph, telephone, telex and data transmission, that typically involves the real-time transmission of customer-supplied information between two or more points without any end-to-end change in the form or content of the customer's information;
standards-related measure means a "standards-related measure" as defined in Article 8-01 (Definitions);
telecommunications means the transmission, emission or reception of signs, signals, written words, images, sounds and information of any type by wire, radio, optical means or other electromagnetic systems;
telecommunications service means a service provided by means of the transmission and reception of signals by any electromagnetic means, but does not mean the cable, broadcast or other electromagnetic distribution of radio or television programming; and
terminal equipment means any digital or analogue device capable of processing, receiving, switching, signalling or transmitting signals by electromagnetic means and that is connected by radio or wire to a public telecommunications transport network at a termination point.
Article 12-02. Scope and Coverage
1. This Chapter applies to:
(a) measures adopted or maintained by a Party relating to access to and use of public telecommunications transport networks or services by persons of the other Party, including access and use by such persons operating private networks for intracorporate communications;
(b) measures adopted or maintained by a Party relating to the provision of enhanced or value-added services by persons of the other Party in the territory, or across the borders, of a Party; and
(c) standards-related measures relating to attachment of terminal or other equipment to public telecommunications transport networks.
2. Except to ensure that persons operating broadcast stations and cable systems have continued access to and use of public telecommunications transport networks and services, this Chapter does not apply to any measure adopted or maintained by a Party relating to broadcast or cable distribution of radio or television programming.
3. Nothing in this Chapter shall be construed to:
(a) require a Party to authorize a person of the other Party to establish, construct, acquire, lease, operate or provide telecommunications transport networks or telecommunications transport services;
(b) require a Party, or require a Party to compel any person, to establish, construct, acquire, lease, operate or provide telecommunications transport networks or telecommunications transport services not offered to the public generally;
(c) prevent a Party from prohibiting persons operating private networks from using their networks to provide public telecommunications transport networks or services to third persons; or
(d) require a Party to compel any person engaged in the broadcast or cable distribution of radio or television programming to make available its cable or broadcast facilities as a public telecommunications transport network.
Article 12-03. Access to and Use of Public Telecommunications Transport Networks and Services
1. For purposes of this Article, "non-discriminatory" means on terms and conditions no less favourable than those accorded to any other customer or user of like public telecommunications transport networks or services in like circumstances.
2. Each Party shall ensure that persons of the other Party have access to and use of any public telecommunications transport network or service, including private leased circuits, offered in its territory or across its borders for the conduct of their business, on reasonable and non-discriminatory terms and conditions, including as set out in the other paragraphs of this Article.
3. Subject to paragraphs 7 and 8, each Party shall ensure that such persons are permitted to:
(a) purchase or lease, and attach terminal or other equipment that interfaces with the public telecommunications transport network;
(b) interconnect private leased or owned circuits with public telecommunications transport networks in the territory, or across the borders, of that Party, including for use in providing dial-up access to and from their customers or users, or with circuits leased or owned by another person on terms and conditions mutually agreed by those persons, as established in Annex 12-03;
(c) perform switching, signalling and processing functions; and
(d) use operating protocols of their choice, in accordance with the technical plans of each Party.
4. Each Party shall ensure that the pricing of public telecommunications transport services reflects economic costs directly related to providing the services. Nothing in this paragraph shall be construed to prevent cross-subsidization between public telecommunications transport services.
5. Each Party shall ensure that persons of the other Party may use public telecommunications transport networks or services for the movement of information in its territory or across its borders, including for intracorporate communications, and for access to information contained in data bases or otherwise stored in machine- readable form in the territory of the other Party.
6. Further to Article 19-02 (General Exceptions), nothing in this Chapter shall be construed to prevent a Party from adopting or enforcing any measure necessary to:
(a) ensure the security and confidentiality of messages; or
(b) protect the privacy of subscribers to public telecommunications transport networks or services.
7. Further to Article 12-05, each Party shall ensure that no condition is imposed on access to and use of public telecommunications transport networks or services, other than that necessary to:
(a) safeguard the public service responsibilities of providers of public telecommunications transport networks or services, in particular their ability to make their networks or services available to the public generally; or
(b) protect the technical integrity of public telecommunications transport networks or services.