a) an award granting restitution of property shall provide that restitution shall be granted to the enterprise in the territory of the disputing Party;
b) an award of monetary damages and any applicable interest, shall provide for the sum to be paid to the enterprise in the territory of the disputing Party; and
c) an award shall provide that the award shall be made without prejudice to any right that any person may have to relief under applicable domestic law.
3. Arbitral awards shall be final and binding only between the disputing parties and only with respect to the particular case.
4. The arbitral award shall be public, unless the disputing parties agree otherwise.
5. An arbitral tribunal may not order the payment of punitive damages.
6. Each Party shall adopt in its territory such measures as may be necessary for the effective enforcement of awards in accordance with the provisions of this Article, and shall facilitate the enforcement of any award rendered in a proceeding to which it is a party.
7. A disputing investor may seek enforcement of an arbitral award under the ICSID Convention or the New York Convention, if both Parties are parties to those instruments.
8. A disputing party may not enforce a final award until: a) in the case of a final award rendered under the ICSID Convention:
i) 120 days have elapsed since the date on which the award was rendered, and neither of the disputing parties has requested the revision or annulment of the award; or
ii) the review or annulment proceedings have been concluded; and
b) in the case of a final award rendered under the ICSID Additional Facility, the UNCITRAL Arbitration Rules or any other arbitration rules previously agreed upon by the disputing parties:
i) 3 months have elapsed since the date on which the award was rendered, and neither of the disputing parties has commenced proceedings for the revision, setting aside or annulment of the award; or
ii) a court has granted or dismissed an application to revise, set aside or annul the award and there is no further appeal.
9. A Party may not institute proceedings under Chapter XV (Dispute Settlement) for a dispute concerning the violation of the rights of an investor, unless the other Party fails to comply with or abide by an award rendered in a dispute that such investor has submitted under this Section. In such a case, the arbitral tribunal established under Chapter XV (Dispute Settlement) may, at the request of th e Party whose investor was a party to the dispute, issue:
a) a determination that noncompliance or contempt of the final award is inconsistent with the obligations of this Chapter; and
b) a recommendation that the other Party comply with or abide by the final award.
Article 11.32. Expert Opinions
Without prejudice to the appointment of other types of experts where authorized by the applicable arbitration rules, the tribunal, at the request of a disputing party, or on its own initiative unless the disputing parties do not agree, may appoint one or more experts to render written opinions on any factual issue concerning environmental, health, safety or other scientific matters raised by a disputing party in a proceeding, in accordance with such terms and conditions as the disputing parties may agree.
Article 11.33. Interim Measures of Protection
An arbitral tribunal may order an interim measure of protection to preserve the rights of a disputing party or to ensure that the arbitral tribunal's jurisdiction is given full effect, including an order to preserve evidence in the possession or control of a disputing party, or to protect the arbitral tribunal's jurisdiction. An arbitral tribunal may not order either attachment or a stay of enforcement of the allegedly violative measure referred to in Article 11.20. For purposes of this paragraph, an order includes a recommendation.
Article 11.34. Transparency of Arbitral Proceedings
1. Any disputing party may make public any documentation submitted to, or issued by, a tribunal established pursuant to this Section, including an award, provided that it is protected:
a) confidential company information;
b) information that is privileged or otherwise protected from disclosure under the terms of the applicable laws of either Party; and
c) as appropriate, information that the disputing party is required to protect in accordance with the relevant arbitration rules.
2. Each Party may share with government officials at the federal or national, state or regional, or municipal or local level, all relevant documentation generated in the course of a dispute established pursuant to this Section, including information deemed confidential.
In addition, the disputing parties may disclose to other persons involved in the arbitral proceedings such documents submitted to or issued by a tribunal established under this Section as they deem necessary for the preparation of their cases, provided that they ensure that such persons will protect the confidential information contained in such documents.
Article 11.35. Exceptions
1. Without prejudice to the application or non-application of the dispute settlement provisions of this Section or Chapter XV (Dispute Settlement) to other actions taken by a Party pursuant to Article 18.2 (National Security), a ruling by a Party prohibiting or restricting the acquisition of an investment in its territory by an investor of the other Party or its investment pursuant to that Article shall not be subject to such provisions.
2. In the case of Mexico, the dispute settlement provisions of this Section and Chapter XV (Dispute Settlement) shall not apply to a decision of the National Foreign Investment Commission resulting from the assessment under the provisions of Annex I (Nonconforming Measures), reservation I-M-F-4, set forth in Mexico's Schedule, as to whether or not an acquisition that is subject to such assessment should be permitted.
Annex to Article 11.19 . Notification
1. The notice of intent referred to in paragraph 2 of Article 11.19 of this Chapter shall be delivered:
a) in the case of Mexico, at the Dirección General de Consultoria Juridica de Negociaciones of the Secretaría de Economia or its successor; and
b) in the case of Peru, in the General Directorate of International Economic Affairs, Competition and Private Investment of the Ministry of Economy and Finance or its successor.
Any change in relation to the above mentioned entities shall be published, in the case of Mexico, in the Diario Oficial de la Federación, and in the case of Peru, in the Diario Oficial El Peruano; and shall be communicated by the corresponding Party to the other Party through a diplomatic note.
2. The disputing investor shall submit the notice of intent referred to in paragraph 2 of Article 11.19 of this Chapter, in Spanish.
3. In order to facilitate the consultation process, the investor shall submit, together with the notification referred to in the preceding paragraphs, copies of the following documents:
a) where the investor is a national, passport or other official evidence of nationality thereof, or where the claim is made by an investor that is an enterprise of such Party, articles of incorporation or other evidence of incorporation or organization under the law of the non-disputing Party;
b) where an investor of a Party intends to submit a claim to arbitration on behalf of an enterprise of the other Party that is a juridical person owned or controlled by the investor:
i) articles of incorporation or other evidence of incorporation or organization under the laws of the disputing Party; and
ii) document proving that the disputing investor has ownership or control over the enterprise; and
c) if applicable, power of attorney of the legal representative or the document containing the power of attorney sufficient to act on behalf of the disputing investor.
Chapter XII. FINANCIAL SERVICES
Article 12.1. Definitions
For the purposes of this Chapter, the following definitions shall apply:
competent authority: the authority of each Party listed in the Annex to Article 12.1;
business: any entity organized or incorporated under applicable law, whether or not for profit and whether privately or governmentally owned, including partnerships, joint ventures, sole proprietorships, joint ventures or other associations;
enterprise of a Party: an enterprise incorporated or organized under the law of a Party;
State enterprise: an enterprise owned or controlled by the State of a Party through ownership rights;
public entity: a central bank or monetary authority of a Party, or an entity owned or controlled by a Party, that is principally engaged in performing governmental, regulatory or supervisory functions or activities for governmental purposes, excluding entities principally engaged in the supply of financial services on a commercial basis;
financial institution: any financial intermediary or an enterprise that is authorized to do business and is regulated or supervised as a financial institution under the laws of the Party in whose territory it is incorporated;
financial institution of the other Party: a financial institution incorporated in the territory of a Party that is owned or controlled by persons of the other Party;
investment:
a) shares and quotas and any other form of participation, in any proportion, in a financial institution, including the investment made by the latter in a company that provides complementary or auxiliary services for the fulfillment of its corporate purpose, which entitles the owner to participate in the income or profits of the same; and
b) an interest in a financial institution, including the investment made by it in a company that provides complementary or auxiliary services for the fulfillment of its corporate purpose, which entitles the owner to participate in the equity of that financial institution in a liquidation;
However, it shall not be understood as an investment:
c) pecuniary claims arising exclusively from:
i) commercial contracts for the sale of goods or services by a person in the territory of a Party to an enterprise in the territory of the other Party; or
ii) the granting of credit in connection with a commercial transaction, such as trade financing;
d) any other pecuniary claim that does not involve the types of fees set forth in subsections (a) and (b); or
e) a loan granted by a financial institution or a debt security owned by a financial institution, other than a loan granted to a financial institution or a debt security issued by a financial institution that is treated as equity for regulatory purposes by the Party in whose territory the financial institution is incorporated;
investment of an investor of a Party: an investment owned or controlled directly or indirectly by an investor of a Party in the territory of the other Party;
investment of a non-Party: the investment of an investor that is not an investor of a Party;
investor of a Party: a Party, an enterprise of the State of that Party or a person of that Party that intends to make, is making or has made an investment in the territory of the other Party;
disputing investor: a person bringing a claim under Section C of Chapter 11 (Investment);
new financial service: a financial service not supplied in the territory of a Party that is supplied in the territory of the other Party, including any new form of distribution of a financial service or sale of a financial product that is not sold in the territory of a Party;
self-regulatory bodies: any non-governmental entity, including any securities or financial derivatives exchange, clearing house or any other association or organization that exercises proprietary or delegated regulatory or supervisory authority over financial institutions or cross-border financial service providers;
person: a national or an enterprise of a Party, not including branches;
cross-border provision of financial services or cross-border trade in financial services: the provision of a financial service:
a) from the territory of one Party into the territory of the other Party;
b) in the territory of a Party by a person of that Party to a person of the other Party; or
c) by aperson of a Party in the territory of the other Party;
but does not include the supply of a financial service in the territory of a Party for an investment in that territory;
financial service supplier of a Party: a person of a Party engaged in the business of supplying any financial service in the territory of that Party;
cross-border financial service supplier of a Party means a person of a Party that is engaged in the business of supplying financial services in the territory of the Party and that has the purpose of supplying or provides financial services through the cross-border supply of such services; and
financial service: any service of a financial nature offered by a financial service supplier of a Party. Financial services include the following activities:
A. Insurance and insurance-related services:
1. direct insurance, including coinsurance;
a) life insurance;
b) non-life insurance;
2. reinsurance and retrocession;
3. insurance intermediation activities, e.g., insurance brokers and agents; and
4. auxiliary insurance services, e.g. consultants, actuaries, risk assessment and loss adjusting.
B. Banking and other financial services, excluding insurance:
1. acceptance of deposits and other repayable funds from the public;
2. loans of all types, including personal loans, mortgage loans, factoring and financing of commercial transactions;
3. leasing services;
4. all payment and money transfer services, including credit, debit and similar cards, traveler's checks and bank drafts;
5. guarantees and commitments;
6. trading for its own account or for the account of customers, whether on an exchange, in an over-the-counter market or otherwise, of the following:
a) money market instruments, including checks, bills of exchange and certificates of deposit;
b) currencies;
c) products financial products derivatives, including, including, but not limited to including, but not limited to, futures and options;
d) exchange and money market instruments, such as swaps and forward rate agreements;
e) transferable securities; and
f) other negotiable instruments and financial assets, including coinage metal;
7. participation in issues of all kinds of securities, including underwriting and placement as agents (publicly or privately) and the provision of services related to such issues;
8. foreign exchange brokerage;
9. asset management, e.g., cash or portfolio management, collective investment management in all its forms, pension fund management, depository and custodial services, and trust services;
10. payment and clearing services in respect of financial assets, including securities, derivatives and other negotiable instruments;
11. provision and transfer of financial information, and processing of financial data and related software, by providers of other financial services; and
12. advisory, intermediation and other auxiliary services in respect of any of the activities listed in paragraphs 1 to 11, including credit analysis and reports, investment and portfolio research and advice; and advice on acquisitions and on restructuring and corporate strategy.
Article 12.2. Scope of Application and Extent of Obligations
1. This Chapter applies to measures adopted or maintained by a Party relating to:
a) financial institutions of the other Party; b) cross-border trade in financial services; and
c) investors of the other Party and investments of such investors in financial institutions in the territory of the Party, as well as investments of the latter in companies that provide them with complementary or auxiliary services for the fulfillment of their corporate purpose.
2. This Chapter does not apply to:
a) activities or services that are part of public retirement or pension plans or public social security systems;
b) the use of financial resources owned by the other Party; or
c) other financial activities or services on behalf of, or with the guarantee of, the Party or its public entities.
3. In the event of any inconsistency between the provisions of this Chapter and any other provision of this Agreement, the provisions of this Chapter shall prevail to the extent ofthe inconsistency.
Article 12.3. Self-regulatory Bodies
Where a Party requires a financial institution or cross-border financial service provider of the other Party to be a member of, participate in, or have access to a self-regulatory body in order to offer a financial service in or into its territory, the Party shall ensure that such body complies with the obligations of this Chapter.
Article 12.4. Right of Establishment
1. The Parties recognize the principle that investors of one Party should be permitted to establish a financial institution in the territory of the other Party, through any of the modes of establishment and operation permitted by the laws of the other Party.
2. Each Party may impose, at the time of establishment of a financial institution, terms and conditions that are consistent with Article 12.6.
Article 12.5. Cross-border Trade (1)
1. Each Party shall permit persons located in its territory and its nationals, wherever located, to purchase financial services from cross-border financial service suppliers of the other Party located in the territory of that other Party. This does not oblige a Party to allow such cross-border financial service suppliers to advertise or conduct business by any means in its territory. Parties may define what is "advertising" and "doing business" for purposes of this obligation.
2. Where a Party permits the cross-border supply of financial services and without prejudice to other means of prudential regulation of cross-border trade in financial services, it may require the registration of cross-border financial service suppliers of the other Party and of financial instruments.
Article 12.6. National Treatment
1. Each Party shall accord to investors of the other Party treatment no less favorable than that it accords to its own investors, in like circumstances, with respect to the establishment, acquisition, expansion, management, conduct, operation, sale or other disposition of similar financial institutions and investments in similar financial institutions in its territory.
2. Each Party shall accord to financial institutions of the other Party and to investments of investors of the other Party in financial institutions, treatment no less favorable than that it accords, in like circumstances, to its own financial institutions and to investments of its own investors in similar financial institutions with respect to the establishment, acquisition, expansion, management, conduct, operation, sale or other disposition of financial institutions and investments.
3. Where a Party permits the cross-border supply of a financial service under Article 12.5, it shall accord to cross-border financial service suppliers of the other Party treatment no less favorable than that it accords to its own financial service suppliers in like circumstances with respect to the supply of such service.
4. Treatment accorded by a Party, in like circumstances, to financial institutions and cross-border financial service suppliers of the other Party, whether identical to or different from that accorded to its own institutions or service suppliers, is consistent with paragraphs 1 through 3, if it provides equal opportunity to compete.
5. The treatment of a Party, in like circumstances, does not afford equal opportunity to compete if it places the financial institutions and cross-border financial service suppliers of the other Party at a disadvantage in their ability to supply financial services compared to the ability of the Party's own financial institutions and financial service suppliers to supply such services.
Article 12.7. Most-favored-nation Treatment
Each Party shall accord to financial institutions of the other Party, cross-border financial service suppliers of the other Party, investors of the other Party, and investments of such investors in financial institutions, treatment no less favorable than that accorded, in like circumstances, to financial institutions, cross-border financial service suppliers, investors and investments of such investors in like financial institutions of a non-Party.
Article 12.8. Recognition and Harmonization
1. In applying the measures covered by this Chapter, a Party may recognize the prudential measures of the other Party or of a non-Party. Such recognition may be:
a) unilaterally granted;
b) achieved through harmonization or other means; or
c) granted on the basis of an agreement or arrangement with the other Party or with a non-Party.
2. The Party granting recognition of prudential measures pursuant to paragraph 1 shall provide appropriate opportunities for the other Party to demonstrate that there are circumstances under which equivalent regulations exist or will exist, supervision and enforcement of the regulation and, if appropriate, procedures for sharing information between the Parties.
3. Where a Party grants recognition of prudential measures in accordance with paragraph 1 and the circumstances provided for in paragraph 2 exist, that Party shall provide adequate opportunity for the other Party to negotiate accession to the agreement or arrangement, or to negotiate a similar agreement or arrangement.
Article 12.9. Exceptions
1. The provisions of this Chapter or Chapters X (Cross-Border Trade in Services), XI (Investment) and XIll (Entry and Temporary Stay of Business Persons) shall not be construed to prevent a Party from adopting or maintaining reasonable prudential measures of a financial nature for reasons such as:
a) protect investors, depositors or other creditors, policyholders or beneficiaries or persons who are creditors of fiduciary obligations owed by a financial institution or a cross-border financial services provider;
b) maintaining the safety, soundness, integrity or financial responsibility of financial institutions or cross-border financial service providers; and
c) ensure the integrity and stability of that Party's financial system.
2. The provisions of this Chapter or Chapters X (Cross-Border Trade in Services), XI (Investment), and XIll (Entry and Temporary Stay of Business Persons) do not apply to nondiscriminatory measures of general application adopted by a public entity in the conduct of monetary policy or credit policy, or exchange rate policy. This paragraph shall not affect the obligations of any Party under Articles 12.17 or 11.13 (Performance Requirements).
3. Notwithstanding Article 12.17, a Party may prevent or limit transfers from a financial institution or cross-border financial service provider to or for the benefit of an affiliate or a person related to that institution or service provider through the fair and non-discriminatory application of measures relating to the maintenance of the safety, soundness, integrity, or financial responsibility of financial institutions or cross-border financial service providers. The provisions of this paragraph shall be without prejudice to any other provision of this Agreement that permits a Party to restrict transfers.
4. Article 12.6 shall not apply to the grant by a Party of exclusive rights toa financial institution to supply a financial service referred to in paragraph 2(a) of Article 12.2.
Article 12.10. Transparency
1. In addition to the provisions of Article 16.3 (Publication), each Party shall ensure that any measure it adopts on matters related to this Chapter is officially published or otherwise made known in writing in a timely manner to those to whom itis addressed.
2. The competent authorities of each Party shall make available to interested parties any information regarding the requirements for completing and submitting an application for the supply of financial services.
3. At the request of the applicant, the competent authority shall inform him/her of the status of his/her application. Where that authority requires additional information from the applicant, it shall inform him/her without undue delay.
4. Each competent authority shall, within 180 days, issue an administrative ruling on a complete application related to the supply of a financial service, submitted by an investor in a financial institution, by a financial institution or by a cross-border financial service supplier of the other Party. The authority shall communicate the determination to the interested party without delay. The application shall not be considered complete until all relevant hearings have been held and all necessary information has been received. Where it is not practicable to issue a determination within 180 days, the competent authority shall inform the person concerned without undue delay and thereafter endeavor to issue the determination within a reasonable period of time.
5. Nothing in this Chapter obligates a Party to disclose or allow access to: