a) information relating to the financial affairs and accounts of individual customers of financial institutions or cross-border financial service providers; or
b) any confidential information the disclosure of which could hinder the application of the regulations in force, be contrary to the public interest or harm the legitimate commercial interests of a specific person.
6. Each competent authority shall maintain or establish one or more consultation centers to respond in writing as soon as possible to all reasonable written questions submitted by interested persons regarding the measures of general application to be adopted by each Partyin relation to this Chapter.
Article 12.11. Financial Services Committee
1. The Parties establish the Financial Services Committee, composed of the competent authorities of each Party. Representatives of other institutions may also participate when deemed appropriate by the competent authorities.
2. The Committee:
a) supervise the application of this Chapter and its subsequent development;
b) shall consider the financial services aspects submitted to it by any Party;
c) participate in dispute settlement procedures in accordance with Articles 12.19 and 12.20; and
d) facilitate the exchange of information between national supervisory authorities and cooperate in the area of prudential regulatory advice, seeking the harmonization of regulatory frameworks and other policies when deemed appropriate.
3. The Committee shall meet at least once a year to evaluate the operation of this Chapter.
Article 12.12. Consultations
1. Either Party may request consultations with the other Party with respect to any matter related to this Agreement affecting financial services and the other Party shall consider such request. The consulting Parties shall make the results of their consultations known to the Committee at its meetings.
2. Officials of the competent authorities of the Parties shall participate in the consultations provided for in this Article.
3. Each Party may request that the competent authorities of the other Party participate in consultations under this Article to discuss measures of general application of that other Party that may affect the operations of financial institutions or cross-border financial service providers in the territory of the Party requesting the consultation.
4. The provisions of this Article shall not be construed to require the competent authorities involved in consultations pursuant to paragraph 3 to disclose information or to act in a manner that would interfere with particular regulatory, supervisory, administrative or enforcement matters.
5. In cases where, for supervisory purposes, a Party needs information on a financial institution in the territory of the other Party or on cross-border financial service providers in the territory of the other Party, the Party may approach the responsible competent authority in the territory of that other Party to request the information.
Article 12.13. New Financial Services
Each Party shall permit a financial institution of the other Party to lend to any new financial service of a type similar to those which that other Party permits its financial institutions to provide, in accordance with its legislation. The Party may decide the institutional and legal modality through which such service is offered and may require authorization for the provision of such service. When such authorization is required, the respective resolution shall be issued within a reasonable period of time and authorization may only be denied for prudential reasons.
Article 12.14. Data Processing
Subject to prior authorization by the relevant regulator, where required, each Party shall permit financial institutions of the other Party to transfer information into or out of the Party's territory, using any means authorized therein, for processing, when necessary to carry out the ordinary business activities of those institutions.
Article 12.15. Senior Management and Boards of Directors
1. Neither Party may require financial institutions of the other Party to hire personnel of any particular nationality for senior corporate management or other key positions.
2. No Party may require that the board of directors or the board of trustees of a financial institution of the other Party be composed of more than a simple majority of nationals of that Party, residents of its territory, or a combination of both.
Article 12.16. Denial of Benefits
A Party may deny, in whole or in part, benefits under this Chapter to a financial institution of the other Party or a cross-border financial service supplier of the other Party, after notice and consultations in accordance with Articles 12.10 and 12.12, where the Party determines that the service is being supplied by an enterprise that does not conduct substantial business activities or substantive business operations in the territory of the other Party or that, in accordance with each Party's applicable law, is owned or controlled by persons of a non-Party.
Article 12.17. Transfers
1. Each Party shall permit all transfers relating to an investment of an investor of the other Party to be made freely and without delay to and from its territory.
2. Each Party shall allow transfers to be made in a freely convertible currency at the market rate of exchange prevailing on the date of transfer. Such transfers shall include:
a) initial capital and additional amounts to maintain or increase an investment;
b) profits, dividends, interest, capital gains, royalty payments, management fees, technical assistance payments and other remuneration, as well as other amounts derived from the investment;
c) proceeds from the total or partial sale of the investment, or from the total or partial liquidation of the investment;
d) payments made under a contract to which an investor or its investment is a party, including payments made under a loan agreement;
e) payments derived from expropriation compensation; and
f) payments arising from the application of dispute resolution provisions.
3. For the purposes of paragraph 1, transfers shall be deemed to have been made without delay when they have been carried out within the period normally necessary for the completion of the transfer.
4. Notwithstanding paragraphs 1, 2 and 3, a Party may prevent the implementation of a transfer through the equitable, non-discriminatory and good faith application of its legislation in the following cases:
a) bankruptcy, insolvency or protection of creditors' rights;
b) issuance, trading or operations of securities;
c) criminal or administrative offenses;
d) reports of currency transfers or other monetary instruments; or
e) guarantee of compliance with rulings in contentious proceedings.
5. In the event of a fundamental disequilibrium in the balance of payments or a threat thereto, each Party may, on a temporary basis, restrict transfers, provided that such Party implements measures or a program that:
a) is consistent with the Articles of Agreement of the International Monetary Fund;
b) does not exceed what is necessary to meet the circumstances mentioned in the preceding paragraph;
c) is temporary and is eliminated as soon as conditions permit;
d) is promptly notified to the other Party; and
e) is equitable, non-discriminatory and in good faith.
Article 12.18. Expropriation and Compensation
1. No Party shall expropriate or nationalize an investment, directly or indirectly, through measures tantamount to expropriation or nationalization (hereinafter referred to as "expropriation"), unless it is:
a) for a public purpose (2) ;
b) on a non-discriminatory basis;
c) in compliance with the principle of legality and in accordance with the minimum standard of treatment; and
d) by payment of compensation in accordance with paragraph 2.
2. Compensation:
a) shall be equivalent to the fair market value of the expropriated investment immediately before the expropriation took place. The fair market value will not reflect any change in value due to the fact that the expropriation had been publicly known in advance;
b) Valuation criteria shall include current value, asset value, including the reported tax value of tangible property, as well as other criteria that are appropriate to determine fair market value;
c) will be paid without delay;
d) shall include interest at a reasonable commercial rate for the currency in which such payment is made, from the date of expropriation until the date of payment; and
e) shall be fully liquidable and freely transferable.
3. An investor whose investment is expropriated shall have the right, under the law of the Party that carried out the expropriation, to a prompt review of its case by a judicial or other competent authority and to an evaluation of its investment in accordance with the provisions set forth in this Article.
Article 12.19. Settlement of Disputes between the Parties
1. As amended by this Article, Chapter XV (Dispute Settlement) applies to the settlement of disputes arising between the Parties with respect to this Chapter.
2. The Committee shall develop by consensus a list of up to 10 individuals, including up to 5 individuals from each Party, who have the skills and qualifications necessary to serve as panelists in disputes under this Chapter. The members of this roster shall, in addition to satisfying the requirements set out in Chapter XV (Dispute Settlement), have expertise in financial matters or extensive experience derived from the exercise of responsibilities in the financial sector or its regulation.
3. For the purposes of the constitution of the Panel, the list referred to in paragraph 2 shall be used, except that the disputing Parties may agree that individuals not included in that list may serve on the Panel, provided that they meet the requirements set forth in paragraph 2.
4. In any dispute in which the Panel has found a measure to be inconsistent with the obligations of this Agreement, where the suspension of benefits referred to in Chapter XV (Dispute Settlement) is appropriate and the measure affects:
a) only to the financial services sector, the complaining Party may suspend benefits only in that sector;
b) to the financial services sector and any other sector, the complaining Party may suspend benefits in the financial services sector that have an effect equivalent to the effect of that measure on the financial services sector; or
c) In the case of any sector other than the financial services sector, the complaining Party may not suspend benefits in the financial services sector.
Article 12.20. Solution of Disputes between a Party and an Investor of the other Party
1. Except as provided in this Article, claims brought by a disputing investor against a Party in connection with obligations under this Chapter shall be resolved in accordance with the provisions of Section C of Chapter 11 (Investment).
2. When the Party against which the complaint is made invokes any of the exceptions referred to in Article 12.9 , the following procedure shall be observed:
a) the arbitral tribunal shall refer the matter to the Committee for decision. The tribunal may not proceed until it has received a decision of the Committee under the terms of this Article or 60 days have elapsed from the date of receipt by the Committee; and
b) upon receipt of the matter, the Committee shall decide whether and to what extent the Article 12.9 exception invoked is a valid defense to the investor's â claim and shall transmit a copy of its decision to the arbitral tribunal and to the Commission. That decision shall be binding on the tribunal.
3. Each disputing Party shall take the necessary steps to ensure that the members of the arbitral tribunal have the expertise or experience described in paragraph 2 of Article 12.19. The expertise or experience of particular candidates with respect to financial services shall be taken into account to the extent possible in the case of the appointment of the presiding arbitrator of the arbitral tribunal.
Article 12.21. Nonconforming Measures
1. Articles 12.4, 12.5, 12.6, 12.7 and 12.15 do not apply to:
a) any existing non-conforming measure that is maintained by a Party, as set out by that Party in the non-conforming measures contained in Section A of its Schedule to Annex VI;
b) the continuation or prompt renewal of any nonconforming measure referred to in subsection (a); or
c) a modification of any non-conforming measure referred to in subparagraph (a), provided that such modification does not diminish the conformity of the measure as in effect immediately prior to the modification. Nonconforming measures shall include measures with respect to which no Party shall increase the degree of nonconformity with those Articles as of the date of entry into force of this Agreement.
2. The Parties shall gradually liberalize, through future negotiations between themselves, any non-conforming measures referred to in paragraph 1.
3. In the interpretation of a non-conforming measure, all elements of the non- conforming measure shall be considered.
4. Articles 12.4, 12.5, 12.6, 12.7 and 12.15 do not apply to any measures that a Party adopts or maintains in relation to sectors, subsectors or activities, as indicated in Section B of its Schedule to Annex VI.
5. Where a Party has established, in Chapters X (Cross-Border Trade in Services) and XI (Investment) of this Agreement, a reservation to Articles 10.4 (National Treatment), 11.3 (National Treatment), 10.5 (Most-Favored-Nation Treatment), or 11.4 (Most-Favored-Nation Treatment), the reservation shall be deemed to be made to Articles 12.6 and 12.7, as the case may be, to the extent that the measure, sector, subsector, or activity specified in the non-conforming measure is covered by this Chapter.
Article 12.22. Future Work
The Commission shall determine the procedures for establishing market access obligations or quantitative restrictions.
Annex to Article 12.1 . Competent Authority
For the purposes of this Chapter, the competent authority of each Party shall be:
a) in the case of Mexico, the Ministry of Finance and Public Credit or its successor; and
b) in the case of Peru, the Ministry of Economy and Finance or its successor.
Chapter XIII. TEMPORARY ENTRY AND STAY OF BUSINESS PEOPLE
Article 13.1. Definitions
For the purposes of this Chapter, the following definitions shall apply:
temporary entry: the entry of a business person of one Party into the territory of the other Party, without the intention of establishing permanent residence;
immigration measure: any law, regulation, procedure, provision, requirement or practice affecting the entry and stay of foreigners;
business person: a national of a Party who engages in trade in goods or supply of services, or in investment activities in the other Party;
professional: the business person of a Party who carries out a specialized occupation that requires:
a) post-secondary education (1), requiring 4 years or more of study (or the equivalent of such degree), related to a specific area of knowledge; and
b) the theoretical and practical application of this area;
technical professional: the business person of a Party who carries out a specialized occupation that requires:
a) post-secondary education (1) or technical education requiring between 1 and 4 years of study (or the equivalent of such degree), related to a specific area of knowledge; and
b) the theoretical and practical application of this area.
Article 13.2. General Principles
1. This Chapter reflects the preferential trade relationship between the Parties, the desirability of facilitating entry and temporary stay in accordance with the provisions of the Annex to Article 13.4, according to the principle of reciprocity and the need to establish transparent criteria and procedures for entry and temporary stay, as well as to ensure border security and to protect the national labor force and permanent employment in either Party.
2. Each Party shall apply expeditiously its measures relating to the provisions of this Chapter in accordance with paragraph 1 to avoid undue delay or impairment in trade in goods and services or in the conduct of investment activities covered by this Agreement.
Article 13.3. Scope of Application
1. This Chapter shall apply to measures affecting the entry and temporary stay of nationals of a Party who enter the other Party for business purposes.
2. This Chapter shall not apply to measures relating to nationality or citizenship, or permanent residence or employment.
3. This Chapter shall not prevent a Party from applying measures to regulate the entry of nationals of the other Party into, or their temporary stay in, that Party, including those measures necessary to protect the integrity and ensure the orderly movement of natural persons across its borders, provided that such measures are not applied in such a manner as to nullify or impair the benefits accorded to the other Party under the terms of the categories set out in the Annex to Article 13.4.
4. The fact of requiring a visa for nationals shall not be construed to nullify or impair the benefits granted to any specific category.
Article 13.4. Authorization for Entry and Temporary Stay
1. Each Party shall authorize the entry and temporary stay of business persons of the other Party in accordance with this Chapter, including under the terms of the categories set forth in the Annex to Article 13.4.
2. Each Party shall ensure that the fees charged by its competent authorities for processing applications for entry and temporary stay of business persons of the other Party take into account the administrative costs involved in such processing.
Article 13.5. Provision of Information
1. In addition to the provisions of Article 16.3 (Publication), each Party:
a) provide the other Party with such information as will enable it to become acquainted with the measures relating to this Chapter; and
b) no later than 1 year after the date of entry into force of this Agreement, prepare, publish and make public, explanatory material in a consolidated document relating to the requirements for entry and temporary stay under this Chapter.
2. Upon eniry into force of this Agreement, each Party shall, to the extent practicable, collect, maintain and make known to the other Party, information regarding the authorization of entry and temporary stay of business persons of the other Party under this Chapter.
Article 13.6. Entry and Temporary Stay Committee
1. For purposes of the implementation and operation of this Chapter, in accordance with Article 17.1 (Administrative Commission), the committee on entry and temporary stay is established, which shall meet at least once a year.
2. The functions of the committee shall be:
a) review the implementation and operation of this Chapter;
b) consider the development of additional measures to facilitate the entry and temporary stay of business personsinaccordance with the provisions of the Annex to Article 13.4-A;
c) improve mutual understanding between the parties on credentials and other qualifications relevant to the entry and temporary stay of business persons under this Chapter;
d) present its findings and make recommendations to the Commission, including possible modifications or additions to this Chapter; and
e) to carry out other functions delegated by the Commission, in accordance with Article 17.2 (Functions of the Administrative Commission).
Article 13.7. Settlement of Disputes
1. Notwithstanding Article 15.4 (Consultations), a Party may not request consultations with the other Party with respect to a denial of authorization for entry and temporary stay of business persons under this Chapter, unless:
a) the matter concerns a recurring practice; and
b) the affected business persons have exhausted the available administrative remedies applicable to this particular matter.
2. The remedies referred to in paragraph 1(b) shall be deemed exhausted when the competent authority of a Party has not issued a final determination within 1 year from the date of initiation of an administrative proceeding, and the determination has not been delayed for reasons attributable to the business persons concerned.
Article 13.8. Relationship with other Chapters
1. Except as provided in this Chapter and in Chapters | (Initial Provisions), II (General Definitions), XV (Dispute Settlement), XVII (Administration of the Agreement), XIX (Final Provisions), and Articles 16.2 (Points of Contact), 16.3 (Publication), 16.4 (Notification and Provision of Information), and 16.5 (Administrative Procedures), nothing in this Agreement shall impose any obligation on the Parties with respect to their migration measures.
2. Nothing in this Chapter shall be construed to impose any obligations or commitments with respect to other Chapters of this Agreement.
Article 13.9. Transparency In the Application of Regulations
1. In addition to Chapter XVI (Transparency), each Party shall maintain or establish appropriate mechanisms to respond to inquiries from interested persons regarding regulations relating to the temporary entry of business persons, in accordance with its laws and regulations on transparency.
2. Each Party shall, within 30 working days after considering that the application for temporary entry is complete under its laws and regulations, inform the applicant of the decision taken on the application. Upon request of the applicant, the Party shall provide, without undue delay, information concerning the status of the application.
Annex to Article 13.4 . Temporary entry and stay of business people (2)
Part I. Categories of Entry and Temporary Stay of Business Persons
Section A. Business Visitors
1. Each Party shall authorize temporary entry to a business person who intends to carry out a business activity referred to in Appendix 13.4-A, without requiring employment authorization, provided that, in addition to complying with existing immigration measures applicable to temporary entry, he or she exhibits:
a) proof of nationality of a Party;
b) documentation evidencing that it will undertake such activities and stating the purpose of its entry; and
c) proof of the international character of the business activity proposed to be undertaken and that the person does not intend to enter the local labor market.
2. Each Party shall provide that a business person meets the requirements set forth in paragraph 1(c) when it demonstrates that:
a) the principal source of remuneration for that activity is outside the territory of the Party authorizing temporary entry; and
b) the principal place of business and where most of the profits are earned are outside the territory of the Party authorizing temporary entry.