a) a reasonable opportunity to support or defend their respective positions; and
b) a decision based on the evidence and submissions or, in cases where required by its national legislation, on the record compiled by the administrative authority.
3. Each Party shall ensure that, subject to the means of challenge or subsequent review available under its national law, such rulings are implemented by the agencies or authorities.
Chapter XVII. ADMINISTRATION OF THE AGREEMENT
Article 17.1. Administrative Commission
1. In order to achieve the best functioning of this Agreement, the Parties establish a Commission composed of the Secretary of Economy or his successor, on the part of Mexico, and the Minister of Foreign Trade and Tourism or his successor, on the part of Peru, or the representatives designated by them.
2. The Commission shall establish and modify its rules and procedures, and its decisions shall be adopted by mutual agreement.
3. The Commission shall meet at least once a year, unless the Parties agree otherwise. The meetings of the Commission shall be chaired successively by each Party, and may be held in person, or by teleconference, videoconference or any other technological means.
Article 17.2. Functions of the Administrative Commission
The Commission shall have the following functions:
a) to ensure compliance with and the correct application of the provisions of this Agreement;
b) consider y adopt the decisions necessary for the implementation and fulfillment of this Agreement, in particular on:
i) the improvement of market access conditions, in accordance with paragraph 4 of Article 3.4 (Elimination of Customs Tariffs);
ii) the updating of the rules of origin set out in the Annex to Article 4.2 (Specific Rules of Origin), in accordance with paragraph 1 of Article 4.38 (Committee on Rules of Origin and Origin-Related Procedures);
iii) the incorporation of new appellations of origin for protection under paragraph 3 of Article 5.2 (Recognition and Protection of Appellations of Origin);
iv) the recommendations submitted by the Committee on Sanitary and Phytosanitary Measures, provided for in Article 7.10 (Committee on Sanitary and Phytosanitary Measures) and by the Committee on Technical Barriers to Trade, provided for in 8.10 (Committee on Technical Barriers to Trade);
v) the recommendations submitted by the Committee on Entry and Temporary Stay, provided for in Article 13.6 (Committee on Entry and Temporary Stay of Business Persons); and
vi) other provisions of the Agreement that grant it specific powers, other than those mentioned above;
c) recommend to the Parties, as the case may be, amendments to this Agreement;
d) Establish mechanisms that contribute to the active participation of representatives of the business sectors;
e) resolve any disputes that may arise with respect to the interpretation or application of this Agreement, in accordance with Chapter XV (Dispute Settlement);
f) determine the amount of remuneration and expenses to be paid to Panel members in dispute settlement proceedings;
g) oversee the work of all committees and working or similar groups established pursuant to this Agreement; and
h) such other duties as may arise from this Agreement or as may be entrusted to it by the Parties.
Article 17.3. Powers of the Administrative Committee
The Commission may:
a) establish committees and working groups to facilitate the fulfillment of its functions;
b) issue interpretations of the provisions of this Agreement;
c) seek advice from non-governmental individuals or groups; and
d) carry out any other activity that contributes to the better implementation of this Agreement.
Article 17.4. Agreement Coordinators
1. The Coordinators of each Party shall be:
a) in the case of Mexico, the Undersecretary of Foreign Trade of the Ministry of Economy or his successor or his designated representative; and
b) in the case of Peru, the Vice Minister of Foreign Trade of the Ministry of Foreign Trade and Tourism or his successor, or his designated representative.
2. The Agreement Coordinators will give appropriate follow-up to the decisions of the Commission and will work together in the preparations for the Commission meetings.
Chapter XVIII. EXCEPTIONS
Article 18.1. General Exceptions
1. Article XX of GATT 1994 and its interpretative notes, for purposes of Chapter Ill (Market Access), Chapter IV (Rules of Origin and Origin-Related Procedures), Chapter VII (Sanitary and Phytosanitary Measures), Chapter VIII (Technical Barriers to Trade), are incorporated into and form an integral part of this Agreement, except to the extent that any of its provisions apply to trade in services or investment.
2. Article XIV of the GATS, including footnotesâ , is incorporated into and made an integral part of this Agreement for purposes of Chapter X (Cross-Border Trade in Services), except to the extent that any of its provisions apply to trade in goods.
Article 18.2. National Security
The provisions of this Agreement shall not be construed to mean:
a) oblige a Party to provide or give access to information the disclosure of which it considers contrary to its essential security interests;
b) prevent a Party from taking any measure it considers necessary to protect its essential security interests:
i) relating to trade in armaments, munitions and war materiel and to trade and transactions in goods, materials, services and technology carried out for the direct or indirect purpose of supplying a military institution or other defense establishment;
ii) relating to fissile or fusionable materials, or to those used for their manufacture;
iii) adopted in time of war or in case of serious international tension; or
iv) concerning the implementation of national policies or international agreements on the non-proliferation of nuclear weapons or other nuclear explosive devices; or
c) prevent any Party from taking action in accordance with its obligations under the Charter of the United Nations, as amended, for the maintenance of international peace and security.
Article 18.3. Exceptions to Disclosure of Information
The provisions of this Agreement shall not be construed to require a Party to furnish or give access to information the disclosure of which would impede compliance with or be contrary to its Constitution or laws, with respect to the protection of the privacy of individuals, financial affairs, taxation and bank accounts of individual customers of financial institutions, or be contrary to the public interest.
Article 18.4. Taxation
1. Except as provided in this Article, nothing in this Agreement shall apply to taxation measures.
2. Nothing in this Agreement shall affect the rights and obligations of either Party arising under any tax treaty. In the event of any inconsistency between this Agreement and any such agreement, the agreement shall prevail to the extent of the inconsistency.
3. Notwithstanding the provisions of paragraph 2:
a) Article 3.3 (National Treatment), and such other provisions in this Agreement as are necessary to give effect to that Article, shall apply to taxation measures to the same extent as Article III of GATT 1994; and
b) Article 3.9 (Export Taxes) shall apply to tax measures.
4. Articles 11.12 (Expropriation and Compensation) and 12.18 (Expropriation and Compensation) shall apply to taxation measures. However, no investor may invoke those Articles as a basis for a claim under Article 11.20 (Submission of a Claim to Arbitration) where it has been determined under this paragraph that the measure does not constitute an expropriation. The investor shall, at the time of making the notification referred to in Article 11.19 (Notification and Consultations), submit the matter to the competent authorities specified in the Annex to Article 18.4, for that authority to determine whether the measure does not constitute an expropriation. If the competent authorities do not agree to examine the matier or if, having agreed to examine the matter, they do not agree that the measure does not constitute an expropriation, within 6 months after the matter has been submitted to them, the investor may submit a claim to arbitration pursuant to Article 11.20 (Submission of a Claim to Arbitration).
Article 18.5. Balance of Payments
1. lf a Party experiences serious difficulties in its balance of payments, including the state of its monetary reserves, or in its external financial position or faces the imminent threat thereof, it may adopt or maintain restrictive measures or measures based on prices (2) with respect to trade in goods and services, and with respect to payments and capital movements, including those related to direct investment.
2. The Party that maintains or has adopted any of the measures provided for in paragraph 1 of this Article or any modification thereof shall, where possible, submit a timetable for their elimination. It shall also notify the other Party without delay:
a) what the serious external balance of payments or financial difficulties or threat thereof, as the case may be, consist of;
b) the economic and foreign trade situation of the Party;
c) the alternative measures available to correct the problem; and
d) the economic policies it adopts to address the problems mentioned in paragraph 1, as well as the direct relationship between such policies and the solution of such problems.
3. The measure adopted or maintained by the Party, at all times:
a) avoid unnecessary damage to the economic, commercial or financial interests of the other Parties;
b) shall not impose greater burdens than those necessary to deal with the difficulties that cause the measure to be adopted or maintained;
c) will be temporary and will be progressively released to the extent that serious balance of payments or external financial difficulties or threats thereof improve;
d) shall be applied in accordance with the more favorable of the national treatment and most favored nation principles; and
e) shall be consistent with the conditions set forth in the WTO Agreement and the Articles of Agreement of the International Monetary Fund and other internationally accepted criteria.
Annex to Article 18.4 . Competent Authority
For the purposes of Article 18.4, the competent authority 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 General Directorate of International Economic Affairs, Competition and Private Investment of the Ministry of Economy and Finance or its successor.
Chapter XIX. FINAL PROVISIONS
Article 19.1. Annexes, Appendices and Footnotes
The annexes, appendices and footnotes to this Agreement constitute an integral part of this Agreement.
Article 19.2. Entry Into Force
This Agreement shall enter into force 30 days after the exchange of written communications, through diplomatic channels, attesting that the Parties have completed the legal formalities necessary for the entry into force of this instrument, unless the Parties agree on a different period of time.
Article 19.3. Amendment of the Agreement
1. The Parties may agree, at the request of either Party and at any time, on amendments to this Agreement for its better functioning and implementation.
2. Amendments made to this Agreement as provided in this Article shall enter into force once both Parties have complied with the internal legal procedures for their approval, and shall form an integral part of this Agreement.
Article 19.4. Future Negotiations
One year after the entry into force of this Agreement, the Parties will begin negotiations on a Chapter on government procurement and a Chapter on trade facilitation and customs cooperation.
Article 19.5. Accession
1. In compliance with the provisions of the 1980 Treaty of Montevideo, this Agreement is open to accession, through prior negotiation, by the other member countries of ALADI.
2. The accession shall be formalized once its terms have been negotiated between the Parties and the acceding country, through the execution of an Additional Protocol to this Agreement, which shall enter into force 30 days after being deposited with the General Secretariat of ALADI.
Article 19.6. Complaint
1. Either Party may denounce this Agreement. The denunciation shall be notified in writing to the other Party, as well as to the General Secretariat of LAIA, and shall take effect 180 days after being notified to the other Party, notwithstanding that the Parties may agree on a different term.
2. In the case of the accession of a country or group of countries as established in Article 19.4, notwithstanding the denunciation of the Agreement by a Party, the Agreement shall remain in force for the other Parties.
3. The investment provisions shall continue in force for a period of 10 years from the date of termination of this Agreement, with respect to investments made only during its term, and without prejudice to the subsequent application of the general rules of international law.
Article 19.7. Termination of ECA No. 8
This Agreement supersedes Economic Complementation Agreement No. 8, its annexes, appendices and protocols that have been signed under it.
Article 19.8. Transitional Provision
Notwithstanding the provisions of Article 19.7, the preferential tariff treatment granted by ACE No. 8 shall remain in force for 30 days following the entry into force of this Agreement, for importers who request and use the certificates of origin issued under ACE No. 8, provided that they were issued prior to the entry into force of this Agreement and are in force.
Article 19.9. Reserves
This Agreement may not be subject to reservations or interpretative declarations at the time of its ratification or approval according to the corresponding legal procedures of each Party.
Conclusion
Signed in the city of Lima, Peru, on April 6, 2011, in two original copies in Spanish language, both being equally authentic.
FOR THE REPUBLIC OF PERU
Eduardo Ferreyros Küppers
Minister of Foreign Trade and Tourism
FOR THE UNITED MEXICAN STATES
Bruno Francisco Ferrari Garcia de Alba
Secretary of Economy
Attachments
Annex I . Non-conforming measures
Annex I . Interpretative notes
1. A Party's Schedule indicates, in accordance with paragraph 1 of Articles 10.8 (Nonconforming Measures) and 11.9 (Nonconforming Measures), the reservations taken by a Party with respect to existing measures that are inconsistent with the obligations established by:
a) Article 10.4 or 11.3 (National Treatment);
b) Article 10.5 or 11.4 (Most favored nation treatment);
c) Article 10.7 (Local Presence);
d) Article 11.7 (Performance requirements); or
e) Article 11.8 (Senior executives and boards of directors).
2. Each reserve contains the following elements:
a) Sector refers to the general sector in which a reserve is taken;
b) Sub-sector refers to the specific sector in which a reserve is taken;
c) Industrial Classification refers, where applicable, to the activity covered by the reservation, in accordance with national industrial classification codes;
d) Reserved Obligations specifies the obligation or obligations referred to in paragraph 1 on which a reservation is taken;
e) Level of government indicates the level of government that maintains the measures on which a reservation is taken;
f) Measures identifies existing laws, regulations or other measures, as qualified, where indicated, by the Description element, for which the reservation is taken. A measure referred to in the Measures element:
i) means the measure as amended, continued or renewed, as of the date of entry into force of this Agreement; and
ii) includes any measure subordinate to, adopted or maintained under the authority of, and consistent with, such measure; and
g) Description sets out the liberalization commitments, where made, upon entry into force of this Agreement and, with respect to the obligations referred to in paragraph 1, the remaining non-conforming aspects of the existing measures on which the reservation is taken.
3. In interpreting a reservation, all elements of the reservation shall be considered. A reservation shall be interpreted in the light of the relevant provisions of the Chapter against which the reservation is taken. To the extent that:
a) the Measures element is qualified by a liberalization commitment in the Description element, the Measures element, as qualified, shall prevail over all other elements; and
b) the Measures element is not so qualified, the Measures element shall prevail over all other elements, unless any discrepancy between the Measures element and the other elements, considered as a whole, is so substantial and significant that it would be unreasonable to conclude that the Measures element should prevail; in which case, the elements shall prevail to the extent of that discrepancy.
4. Where a Party maintains a measure requiring a service supplier to be a national, permanent resident, or resident of that Party as a condition for the supply of a service in its territory, a reservation on a measure with respect to Article 10.4 (National Treatment), 10.5 (Most-Favored-Nation Treatment), 10.7 (Local Presence) shall operate as a reservation with respect to Article 11.3 (National Treatment), 11.4 (Most-Favored-Nation Treatment), 11.7 (Performance Requirements), with respect to such measure.
5. For purposes of determining the percentage of foreign investment in economic activities subject to t h e maximum percentages of foreign equity participation, as indicated in Mexico's Schedule, indirect foreign investment carried out in such activities through Mexican enterprises with majority Mexican capital will not be taken into account, provided that such enterprises are not controlled by the foreign investment.
6. For the purposes of Mexico's Schedule, the following definitions shall apply:
international cargo: goods that have their origin or destination outside the territory of a Party;
foreigner exclusion clause: the express provision contained in the bylaws of a company, which establishes that foreigners will not be allowed, directly or indirectly, to be partners or shareholders of the company;
CMAP: the digits of the Mexican Classification of Activities and Products, as established in the Instituto Nacional de Estadística, Geografía e Informática, Clasificación Mexicana de Productos, 1994; and
concession: an authorization granted by the Mexican State to a person to exploit natural resources or provide a service, for which Mexican nationals and Mexican companies will be preferred over foreigners.
7. With respect to the telecommunications sector, Peru will not be prevented from requiring service suppliers to establish themselves in Peru as a condition for the granting of a concession for the installation, operation and exploitation of public telecommunications services.
Annex I . Schedule of Mexico
1. Sector: All sectors
Subsector:
Industrial Classification:
Reserved Obligations: National treatment (Article 11.3)
Level of Government: Federal
Measures: Political Constitution of the United Mexican States, Article 27
Foreign Investment Law, Title II, Chapters I and II
Regulations of the Foreign Investment Law and the National Foreign Investment Registry, Title II, Chapters I and II.
Description: Investment