5. Subject to paragraph 6 and the applicable review procedure for an interim award, a disputing party shall abide by and comply with an award without delay.
6. A disputing party may not seek enforcement of a final award until:
(a) in the case of a final award made under the ICSID Convention:
(i) 120 days have elapsed from the date the award was rendered and no disputing party has requested revision or annulment of the award; or
(i) revision or annulment proceedings have been completed; and
(b) in the case of a final award under the ICSID Additional Facility Rules, the UNCITRAL Arbitration Rules, or the rules selected pursuant to Article 10.16.5(d):
(i) 90 days have elapsed from the date the award was rendered and no disputing party has commenced a proceeding to revise, set aside, or annul the award; or
(ii) a court has dismissed or allowed an application to revise, set aside, or annul the award and there is no further appeal.
7. Each Party shall provide for the enforcement of an award in its territory.
8. A disputing party may seek enforcement of an arbitration award under the ICSID Convention, or the New York Convention regardless of whether actions have been taken under Article 10.18.5.
9. A claim that is submitted to arbitration under this Section shall be considered to arise out of a commercial relationship or transaction for the purposes of Article I of the New York Convention.
Article 10.28. Service of Documents
Delivery of notice and other documents on a Party shall be made to the place named for that Party in Annex 10-F.
Annex 10-A. Customary international law
The Parties confirm their shared understanding that "customary international law" generally and as specifically referenced in Article 10.5 results from a general and consistent practice of States that they follow from a sense of legal obligation. The customary international law minimum standard of treatment of aliens refers, for the purposes of this Agreement, to all customary international law principles that protect the economic rights and interests of aliens.
Annex 10-B. Expropriation
The Parties confirm their shared understanding that:
1. An action or a series of actions by a Party cannot constitute an expropriation unless it interferes with a tangible or intangible property right or property interest in an investment.
2. Article 10.11.1 addresses two situations. The first is direct expropriation, where an investment is nationalised or otherwise directly expropriated through formal transfer of title or outright seizure.
3. The second situation addressed by Article 10.11.1 is indirect expropriation, where an action or series of actions by a Party has an effect equivalent to direct expropriation without formal transfer of title or outright seizure.
(a) The determination of whether an action or series of actions by a Party, in a specific fact situation, constitutes an indirect expropriation, requires a case-by-case, fact-based inquiry that considers, among other factors:
(i) the economic impact of the government action, although the fact that an action or series of actions by a Party has an adverse effect on the economic value of an investment, standing alone, does not establish that an indirect expropriation has occurred;
(ii) the extent to which the government action interferes with distinct, reasonable investment-backed expectations; and
(iii) the character of the government action.
(b) Except in rare circumstances, non-discriminatory regulatory actions by a Party that are designed and applied to protect legitimate public welfare objectives, such as public health, safety, and the environment, do not constitute indirect expropriations.
Annex 10-C. Transfers
Chile
1. Chile reserves the right of the Central Bank of Chile (Banco Central de Chile) to maintain or adopt measures in conformity with Law 18.840, Constitutional Organic Law of the Central Bank of Chile (Ley 18.840, Ley Orgdnica Constitucional del Banco Central de Chile) or other legislation, in order to ensure currency stability and the normal operation of domestic and foreign payments. For this purpose, the Central Bank of Chile is empowered to regulate the supply of money and credit in circulation and international credit and foreign exchange operations. The Central Bank of Chile is empowered as well to issue regulations governing monetary, credit, financial, and foreign exchange matters. Such measures include, inter alia, the establishment of restrictions or limitations on current payments and transfers (capital movements) to or from Chile, as well as transactions related to them, such as requiring that deposits, investments or credits from or to a foreign country, be subject to a reserve requirement (encaje).
2. Notwithstanding paragraph 1, the reserve requirement that the Central Bank of Chile can apply pursuant to Article 49 N° 2 of Law 18.840, shall not exceed 30 per cent of the amount transferred and shall not be imposed for a period which exceeds two years.
3. When applying measures under this Annex, Chile, as established in its legislation, shall not discriminate between Australia and any third country with respect to transactions of the same nature.
Annex 10-D. Dl 600
Chile
1. The obligations and commitments contained in this Chapter do not apply to Decree Law 600, Foreign Investment Statute (Decreto Ley 600, Estatuto de la Inversioén Extranjera) (hereinafter referred to in this Annex as "DL 600"), and to Law 18.657, Foreign Capital Investment Fund Law (Ley 18.657, Ley de Fondos de Inversion de Capital Extranjero), to the continuation or prompt renewal of such laws, to amendments to those laws or to any special and/or voluntary investment regime that may be adopted in the future by Chile.
2. For greater certainty, it is understood that the Foreign Investment Committee of Chile has the right to accept and reject applications to invest through DL 600 and Law 18.657. Additionally, the Foreign Investment Committee has the right to regulate the terms and conditions of foreign investment under DL 600 and Law 18.657.
3. Nowithstanding paragraphs 1 and 2, Chile shall accord to an investor of Australia or its investment that is a party to an investment contract under DL 600, the better of the treatment required under Section A of this Chapter or the treatment under the investment contract.
4. Chile shall permit an investor of Australia or its investment that has entered into an investment contract under DL 600 to amend the investment contract to make it consistent with the obligation referred to in paragraph 3.
5. Notwithstanding any other provision in this Agreement, Chile may prohibit an investor of Australia or a covered investment from transferring from Chile proceeds of the sale of all or any part of an investment made pursuant to a contract under DL 600 for up to one year after the date that the investor or covered investment transferred funds to Chile to establish the investment.
Annex 10-E. Termination of the bilateral investment agreement
1. Without prejudice to paragraph 2, the Parties agree that the "Agreement between the Government of Australia and the Government of the Republic of Chile on the Reciprocal Promotion and Protection of Investments", and its Protocol, signed in Canberra on 9 July 1996, (hereafter the "IPPA''), will terminate on the date of entry into force of the present Agreement.
2. The IPPA shall continue to apply to any investment (as defined in the IPPA) which was made before the entry into force of this Agreement with respect to any act, fact or situation which originated before the entry into force of this Agreement.
3. Notwithstanding paragraph 2, an investor may only submit a claim under Article 11 of the IPPA (Settlement of disputes between a Contracting Party and an investor of the other Contracting Party) within three years from the date of entry into force of this Agreement.
4. The Parties agree that this Annex constitutes an amendment to Article 12 of the IPPA and is effective to terminate the IPPA.
Annex 10-F. Service of documents on a party under section b
Australia
Notices and other documents in disputes under Section B shall be served on Australia by delivery to:
Department of Foreign Affairs and Trade
Chile
Notices and other documents in disputes under Section B shall be served on Chile by delivery to:
Dirección de Asuntos Jurídicos del Ministerio de Relaciones Exteriores de la República de Chile
Teatinos 180
Santiago, Chile
Chapter 11. Telecommunications
Article 11.1. Definitions
For the purposes of this Chapter:
(a) cost-oriented means based on cost, and may include a reasonable profit, and may involve different cost methodologies for different facilities or services;
(b) dialing parity means the ability of an end-user to use an equal number of digits to access a like public telecommunications service, regardless of the public telecommunications service supplier chosen by such end-user and in a way that involves no unreasonable dialing delays;
(c) end-user means a final consumer of or subscriber to a public telecommunications service, including a service supplier other than a supplier of public telecommunications services;
(d) essential facilities means facilities of a public telecommunications network or service that:
(i) are exclusively or predominantly provided by a single or limited number of suppliers, and
(ii) cannot feasibly be economically or technically substituted in order to provide a service;
(e) interconnection means linking with suppliers providing public telecommunications networks or services in order to allow the users of one supplier to communicate with the users of another supplier and to access services provided by another supplier;
(f) leased circuit means telecommunications facilities between two or more designated points that are set aside for the dedicated use of, or availability to, a particular customer or other users;
(g) major supplier means a supplier or suppliers which alone or together have the ability to materially affect the terms of participation (having regard to price and supply) in the relevant market for public telecommunications networks or services as a result of control over essential facilities or use of its position in the market;
(h) network element means a facility or equipment used in supplying a public telecommunications service, including features, functions, and capabilities provided by means of such a facility or equipment, which may include local loop, sub loops and line sharing;
(i) non-discriminatory means treatment no less favourable than that accorded to any other user of like public telecommunications networks or services in like circumstances;
(j) number portability means the ability of end-users to retain existing telephone numbers when switching between suppliers of like public telecommunications networks or services;
(k) physical co-location means physical access to space in order to install, maintain or repair equipment at premises owned or controlled and used by a major supplier to supply public telecommunications networks or services;
(l) public telecommunications network means the telecommunications infrastructure which a Party requires to be used to provide telecommunications services;
(m) public telecommunications service means any telecommunications service which a Party requires to be offered to the public generally. Such services may include, inter alia, telephone and data transmission typically involving customer-supplied information between two or more points without any end-to-end change in the form or content of the customer's information;
(n) regulatory decisions means decisions by regulators made pursuant to authority conferred under domestic law including in relation to:
(i) the making of rules for the telecommunications industry excluding legislation and statutory rules;
(ii) the approval of terms and conditions, standards and codes to apply in the telecommunications industry;
(iii) the adjudication or other resolution of disputes between suppliers of public telecommunications networks or services; and
(iv) licensing;
(o) telecommunications means the transmission and reception of signals by any electromagnetic means;
(p) telecommunications regulatory body means any body or bodies responsible for the regulation of telecommunications; and
(q) user means an end-user or a supplier of public telecommunications networks or services.
Article 11.2. 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 networks and services;
(b) measures adopted or maintained by a Party relating to suppliers of public telecommunications networks and services;
(c) measures adopted or maintained by a Party relating to the conduct of major suppliers; and
(d) other measures relating to public telecommunication networks or services.
2. In the event of any inconsistency between this Chapter and another Chapter, this Chapter shall prevail to the extent of the inconsistency.
3. Except to ensure that enterprises operating broadcast stations and cable systems have continued access to and use of public telecommunications networks and services, this Chapter does not apply to measures that a Party adopts or maintains relating to broadcast or cable distribution of radio or television programming.
4. Nothing in this Chapter shall be construed as:
(a) requiring a Party to compel any enterprise to establish, construct, acquire, lease, operate, or provide telecommunications networks or services where such networks or services are not offered to the public generally;
(b) requiring a Party to compel any enterprise exclusively engaged in the broadcast or cable distribution of radio or television programming to make available its broadcast or cable facilities as a public telecommunications network; or
(c) preventing a Party from prohibiting persons operating private networks from using their networks to provide public telecommunications networks or services to third persons.
Section A. Access to and Use of Public Telecommunications Networks or Services
Article 11.3. Access and Use
1. Each Party shall ensure that enterprises of the other Party have access to and use of any public telecommunications network or service, including leased circuits, offered in its territory or across its borders on a timely basis and on terms and conditions that are reasonable and non-discriminatory such as those set out in paragraphs 2 to 6.
2. Each Party shall ensure that such enterprises are permitted to:
(a) purchase or lease, and attach terminal or other equipment that interfaces with, a public telecommunications network;
(b) provide services to individual or multiple end-users over leased or owned circuits;
(c) connect owned or leased circuits with public telecommunications networks and services in the territory, or across the borders, of that Party, or with circuits leased or owned by another enterprise;
(d) perform switching, signaling, processing, and conversion functions; and
(e) use operating protocols of their choice.
3. Each Party shall ensure that enterprises of the other Party may use public telecommunications networks and services for the movement of information in its territory or across its borders and for access to information contained in databases or otherwise stored in machine-readable form in the territory of either Party or any WTO Member.
4. Notwithstanding paragraph 3, a Party may take such measures as are necessary to:
(a) ensure the security and confidentiality of messages; or
(b) protect the privacy of personal data of end users of public telecommunications networks or services,
subject to the requirement that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade in services.
5. Each Party shall ensure that no condition is imposed on access to and use of public telecommunications networks or services, other than as necessary to:
(a) safeguard the public service responsibilities of suppliers of public telecommunications 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 networks or services.
6. Provided that they satisfy the criteria set out in paragraph 5, conditions for access to and use of public telecommunications networks and services may include:
(a) a requirement to use specified technical interfaces, including interface protocols, for inter-connection with such networks and services;
(b) requirements, where necessary, for the inter-operability of such services;
(c) type approval of terminal or other equipment which interfaces with the network and technical requirements relating to the attachment of such equipment to such networks; and
(d) notification, registration and licensing which, if adopted or maintained, are transparent and applications processed without undue delay.
Section B. Suppliers of Public Telecommunications Networks or Services
Article 11.4. Interconnection
1. Each Party shall ensure suppliers of public telecommunications networks or services in its territory provide, directly or indirectly, interconnection with the suppliers of public telecommunications networks or services of the other Party.
2. In carrying out paragraph 1, each Party shall ensure that suppliers of public telecommunications networks or services in its territory take reasonable steps to protect the confidentiality of commercially sensitive information of, or relating to, suppliers and end-users of public telecommunications networks or services and only use such information for the purpose of providing those services.
Article 11.5. Number Portability
Each Party shall ensure that suppliers of public telecommunications networks or services in its territory provide number portability, to the extent technically and economically feasible, in a reasonable period of time and on terms and conditions that are reasonable and non-discriminatory.
Article 11.6. Dialing Parity and Access to Telephone Numbers
Each Party shall ensure that:
(a) its telecommunication regulatory body has the authority to require that suppliers of public telecommunications services in its territory provide dialing parity within the same category of service to suppliers of public telecommunications services of the other Party; and
(b) suppliers of public telecommunications services of the other Party are afforded non-discriminatory access to telephone numbers.
Article 11.7. Submarine Cable Systems
Each Party shall ensure reasonable and non-discriminatory treatment for access to submarine cable systems (including landing facilities) in its territory, where a supplier is authorised to operate a submarine cable system as a public telecommunications service.
Section C. Conduct of Major Suppliers of Public Telecommunications Networks and Services
Article 11.8. Major Supplier Competitive Safeguards
Each Party shall maintain appropriate measures for the purpose of preventing suppliers who, alone or together, are a major supplier in its territory from engaging in or continuing anti-competitive practices, including in particular:
(a) engaging in anti-competitive cross-subsidisation;
(b) using information obtained from competitors with anti-competitive results; and
(c) not making available, on a timely basis, to suppliers of public telecommunications networks or services, technical information about essential facilities and commercially relevant information that are necessary for them to provide services.
Article 11.9. Treatment by Major Suppliers
Each Party shall ensure that major suppliers in its territory accord suppliers of public telecommunications networks and services of the other Party treatment no less favourable than such major suppliers accord in like circumstances to their subsidiaries, their affiliates or non-affiliated service suppliers regarding:
(a) the availability, provisioning, rates, or quality of like public telecommunications networks or services; and
(b) the availability of technical interfaces necessary for interconnection.
Article 11.10. Interconnection with Major Suppliers (11-1)
General Terms and Conditions
1. Each Party shall ensure that major suppliers in its territory provide interconnection for the facilities and equipment of suppliers of public telecommunications networks or services of the other Party:
(a) at any technically feasible point in the major supplier's network;
(b) under non-discriminatory terms, conditions (including technical standards and specifications), and rates (11-2),
(c) of a quality no less favourable than that provided by such major suppliers for their own like services, for like services of non-affiliated service suppliers, or for like service of their subsidiaries or other affiliates;
(d) in a timely fashion, on terms, conditions (including technical standards and specifications), and cost-oriented rates (11-3) that are transparent, reasonable, having regard to economic feasibility, and sufficiently unbundled so that suppliers seeking interconnection need not pay for network components or facilities that they do not require for the service to be provided; and
(e) on request, at points in addition to the network termination points offered to the majority of users, subject to charges that reflect the cost of construction of necessary additional facilities.
Options for Interconnecting with Major Suppliers
2. Each Party shall ensure that suppliers of public telecommunications networks or services of the other Party may interconnect their facilities and equipment with those of major suppliers in its territory pursuant to at least one of the following options (11-4):
(a) a reference interconnection offer or another standard interconnection offer containing the rates, terms, and conditions that the major supplier offers generally to suppliers of public telecommunications networks or services;
(b) the terms and conditions of an existing interconnection agreement; or
(c) through negotiation of a new interconnection agreement.