(B) juridical persons identified under paragraph (j)(i); and
(k) "a service supplied in the exercise of governmental authority" means any service which is supplied neither on a commercial basis nor in competition with one or more service suppliers.
Article 28. Most-favoured Nation Treatment
1. The rights and obligations of the Parties with respect to most-favoured nation treatment shall be governed by the GATS.
2. If a Party enters into an agreement with a non-Party which has been notified under Article V of the GATS, it shall, upon request from another Party, afford adequate opportunity to the other Parties to negotiate, on a mutually advantageous basis, the benefits granted therein.
Article 29. Market Access
1. With respect to market access through the modes of supply identified in Article 23, each Party shall accord services and service suppliers of another Party treatment no less favourable than that provided for under the terms, limitations and conditions agreed and specified in its Schedule referred to in Article 31.
2. In sectors where market-access commitments are undertaken, the measures which a Party shall not maintain or adopt either on the basis of a regional subdivision or on the basis of its entire territory, unless otherwise specified in its Schedule, are defined as:
(a) limitations on the number of service suppliers whether in the form of numerical quotas, monopolies, exclusive service suppliers or the requirements of an economic needs test;
(b) limitations on the total value of service transactions or assets in the form of numerical quotas or the requirement of an economic needs test;
(c) limitations on the total number of service operations or on the total quantity of service output expressed in the terms of designated numerical units in the form of quotas or the requirement of an economic needs test. (3)
(d) limitations on the total number of natural persons that may be employed in a particular service sector or that a service supplier may employ and who are necessary for, and directly related to, the supply of a specific service in the form of numerical quotas or a requirement of an economic needs test;
(e) measures which restrict or require specific types of legal entities or joint ventures through which a service supplier of another Party may supply a service; and
(f) limitations on the participation of foreign capital in terms of maximum percentage limit on foreign shareholding or the total value of individual or aggregate foreign investment.
Article 30. National Treatment
1. In the sectors inscribed in its Schedule referred to in Article 31 and subject to the conditions and qualifications set out therein, each Party shall grant to services and services suppliers of another Party, in respect of all measures affecting the supply of services, treatment no less favourable than that it accords to its own like services and services suppliers. (4)
2. A Party may meet the requirement of paragraph 1 by according to services and service suppliers of another Party, either formally identical treatment or formally different treatment to that it accords to its own like services and service suppliers.
3. Formally identical or formally different treatment shall be considered to be less favourable if it modifies the conditions of competition in favour of services or service suppliers of the Party compared to like services or service suppliers of another Party.
Article 31. Trade Liberalisation
1. The Schedule of specific commitments that each Party undertakes under Articles 29 and 30 as well as paragraph 3 of this Article is set out at Annex VIII. With respect to sectors where such commitments are undertaken, each Schedule specifies:
(a) terms, limitations and conditions on market access;
(b) conditions and qualifications on national treatment;
(c) undertakings relating to additional commitments referred to in paragraph 3; and
(d) where appropriate, the time-frame for implementation of such commitments and the date of entry into force of such commitments.
2. Measures inconsistent with both Articles 29 and 30 are inscribed in the column relating to Article 29. In this case, the inscription is considered to provide a condition or qualification to Article 30 as well.
3. Where a Party undertakes a specific commitment on measures affecting trade in services not subject to scheduling under Articles 29 and 30, including those regarding qualifications, standards or licensing matters, such commitments are inscribed in its Schedule as additional commitments.
4. The Parties undertake to review their Schedules of specific commitments at least every three years, or more frequently, with a view to provide for a reduction or elimination of substantially all remaining discrimination between the Parties with regard to trade in services covered in this Section on a mutually advantageous basis and ensuring an overall balance of rights and obligations.
Article 32. Domestic Regulation
1. In sectors where specific commitments are undertaken, each Party shall ensure that all measures of general application affecting trade in services are administered in a reasonable, objective and impartial manner.
2. Each Party shall maintain or institute as soon as practicable judicial, arbitral or administrative tribunals or procedures which provide, at the request of an affected service supplier of another Party, for the prompt review of, and where justified, appropriate remedies for, administrative decisions affecting trade in services. Where such procedures are not independent of the agency entrusted with the administrative decision concerned, the Party shall ensure that the procedures in fact provide for an objective and impartial review.
3. Where authorisation is required for the supply of a service, the competent authorities of a Party shall promptly, after the submission of an application is considered complete under domestic laws and regulations, inform the applicant of the decision concerning the application. At the request of the applicant, the competent authorities of the Party shall provide, without undue delay, information concerning the status of the application.
4. The Parties shall jointly review the results of the negotiations on disciplines for measures relating to qualification requirements and procedures, technical standards and licensing requirements pursuant to Article VI.4 of the GATS aiming to ensure that such measure do not constitute unnecessary barriers to trade in services, with a view to their incorporation into this Agreement. The Parties note that such disciplines aim to ensure that such requirements are, inter alia:
(a) based on objective and transparent criteria, such as competence and the ability to supply the service;
(b) not more burdensome than necessary to ensure the quality of the service;
(c) in the case of licensing procedures, not in themselves a restriction on the supply of the service.
5. In sectors in which a Party has undertaken specific commitments, until the incorporation of disciplines developed pursuant to paragraph 4, a Party shall not apply licensing and qualification requirements and technical standards in a manner which:
(a) does not comply with the criteria outlined in paragraphs 4 (a), (b) or (c); and
(b) could not reasonably have been expected of that Party at the time of the conclusion of the negotiation of the present agreement.
6. Whenever a domestic regulation is prepared, adopted and applied in accordance with international standards applied by both Parties, it shall be rebuttably presumed to comply with the provisions of this Article.
7. Each Party shall provide for adequate procedures to verify the competence of professionals of another Party.
Article 33. Recognition
1. The Parties shall encourage the relevant bodies in their respective territories to provide recommendations on mutual recognition, for the purpose of the fulfilment, in whole or in part, by service suppliers of the criteria applied by each Party for the authorisation, licensing, accreditation, operation and certification of service suppliers and, in particular, professional services.
2. The Joint Committee, within a reasonable period of time and considering the level of correspondence of the respective regulations, shall decide whether a recommendation referred to in paragraph 1 is consistent with this Section. If that is the case, such a recommendation shall be implemented through an agreement on mutual requirements, qualifications, licences and other regulations to be negotiated by the competent authorities.
3. Any such agreement shall be in conformity with the relevant provisions of the WTO Agreement and, in particular, Article VII of the GATS.
4. Where the Parties agree, each Party shall encourage its relevant bodies to develop procedures for the temporary licensing of professional services suppliers of another Party.
5. The Joint Committee shall periodically, and at least once every three years, review the implementation of this Article.
6. Where a Party recognises, by agreement or arrangement, the education or experience obtained, requirements met or licenses or certifications granted in the territory of a non-Party, that Party shall accord another Party, upon request, adequate opportunity to negotiate its accession to such an agreement or arrangement or to negotiate comparable ones with it. Where a Party accords recognition autonomously, it shall afford adequate opportunity for another Party to demonstrate that the education or experience obtained, requirements met or licenses or certifications granted in the territory of that other Party should also be recognised.
Article 34. Movement of Natural Persons
1. This Section applies to measures affecting natural persons who are service suppliers of a Party, and natural persons of a Party who are employed by a service supplier of a Party, in respect of the supply of a service. Natural persons covered by a Party's specific commitments shall be allowed to supply the service in accordance with the terms of those commitments.
2. This Section shall not apply to measures affecting natural persons seeking access to the employment market of a Party, nor shall it apply to measures regarding nationality, residence or employment on a permanent basis.
3. This Section shall not prevent a Party from applying measures to regulate the entry of natural persons of another Party into, or their temporary stay in, its territory, including those measures necessary to protect the integrity of, and to ensure the orderly movement of natural persons across its borders, provided that such measures are not applied in a manner so as to nullify or impair the benefits accruing to a Party under the terms of a specific commitment. (5)
Article 35. Telecommunications Services
Specific provisions on telecommunications services are set out in Annex IX.
Section II. FINANCIAL SERVICES
Article 36. Coverage
1. This Section applies to measures by a Party affecting trade in financial services, including measures taken by central, regional or local governments and authorities, as well as by non-governmental bodies in the exercise of powers delegated by central, regional or local governments or authorities.
2. Nothing in this Section shall be construed to impose any obligation with respect to government procurement, which is subject to Chapter V.
3. This Section does not apply to:
(a) activities conducted by a central bank or monetary authority or by any other public entity in pursuit of monetary or exchange rate policies;
(b) activities forming part of a statutory system of social security or public retirement plans; and
(c) other activities conducted by a public entity for the account or with the guarantee or using the financial resources of the government.
4. For the purposes of paragraph 3, if a Party allows any of the activities referred to in subparagraph 3(b) or 3(c) to be conducted by its financial service suppliers in competition with a public entity or a financial service supplier, this Section applies to such activities.
Article 37. Definitions
For the purposes of this Section:
(a) “commercial presence” means any type of business or professional establishment, including through:
(i) the constitution, acquisition or maintenance of a juridical person; or
(ii) the creation or maintenance of a branch or a representative office;
within the territory of a Party for the purpose of supplying a financial service;
(b) “financial service” means any service of a financial nature offered by a financial service supplier of a Party. Financial services include all insurance and insurance-related services, and all banking and other financial services (excluding insurance). Financial services include the following activities:
Insurance and insurance-related services
(i) direct insurance (including co-insurance):
(aa) life;
(bb) non-life;
(ii) reinsurance and retrocession;
(iii) insurance intermediation, such as brokerage and agency;
(iv) services auxiliary to insurance, such as consultancy, actuarial, risk assessment and claim settlement services;
Banking and other financial services (excluding insurance)
(v) acceptance of deposits and other repayable funds from the public;
(vi) lending of all types, including consumer credit, mortgage credit, factoring and financing of commercial transaction;
(vii) financial leasing;
(viii) all payment and money transmission services, including credit, charge and debit cards, traveller cheques and bankers drafts;
(ix) guarantees and commitments;
(x) trading for own account or for account of customers, whether on an exchange, in an over-the-counter market or otherwise, the following:
(aa) money market instruments (including cheques, bills, certificates of deposits);
(bb) foreign exchange;
(cc) derivative products including, but not limited to, futures and options;
(dd) exchange rate and interest rate instruments, including products such as swaps, forward rate agreements;
(ee) transferable securities; or
(ff) other negotiable instruments and financial assets, including bullion;
(xi) participation in issues of all kinds of securities, including underwriting and placement as agent (whether publicly or privately) and provision of services related to such issues;
(xii) money broking;
(xiii) asset management, such as cash or portfolio management, all forms of collective investment management, pension fund management, custodial, depositary and trust services;
(xiv) settlement and clearing services for financial assets, including securities, derivative products and other negotiable instruments;
(xv) provision and transfer of financial information, and financial data processing and related software by suppliers of other financial services;
(xvi) advisory, intermediation and other auxiliary financial services on all the activities listed in subparagraphs (v) through (xv), including credit reference and analysis, investment and portfolio research and advice, advice on acquisitions and on corporate restructuring and strategy.
(c) “financial service supplier” means any natural or juridical person of a Party that seeks to supply or supplies financial services but does not include a public entity;
(d) “juridical person” means any legal entity duly constituted or otherwise organised under applicable law, whether for profit or otherwise, and whether privately-owned or governmentally owned, including any corporation, trust, partnership, joint venture, sole proprietorship or association;
(e) “juridical person of a Party” means a juridical person which is either:
(i) constituted or otherwise organised under the law of Chile or an EFTA State, and that is engaged in substantive business operations in Chile or in the EFTA State concerned; or
(ii) in the case of the supply of a financial service through commercial presence, owned or controlled by:
(aa) natural persons of that Party; or
(bb) juridical persons identified under subparagraph (h)(i);
(f) “measure” means any measure by a Party, whether in the form of a law, regulation, rule, procedure, decision, administrative action or any other form;
(g) “measures by a Party affecting trade in financial services” include measures in respect of:
(i) the purchase, payment or use of a financial service;
(ii) the access to and use of, in connection with the supply of a financial service, financial services which are required by that Party to be offered to the public generally; and
(iii) the presence, including commercial presence, of persons of another Party for the supply of a financial service in the territory of that Party;
(h) “natural person of a Party” is, in accordance with its domestic laws and regulations, a national or a permanent resident of that Party if he or she is accorded substantially the same treatment as nationals in respect of measures affecting trade in financial services;
(i) “public entity” means:
(i) a government, a central bank or a monetary authority of a Party, or an entity owned or controlled by a Party, that is principally engaged in carrying out governmental functions or activities for governmental purposes, not including an entity principally engaged in supplying financial services on commercial terms; or
(ii) a private entity, performing functions normally performed by a central bank or monetary authority, when exercising those functions;
(j) “self-regulatory organisation” means any non-governmental body, including a securities or futures exchange or market, clearing agency, other organisation or association, that is recognised by the domestic laws and regulations of a Party as a self-regulatory organisation and that exercises regulatory or supervisory authority over financial service suppliers by statute or delegation from a Party;
(k) “supply of a financial service” includes the production, distribution, marketing, sale and delivery of a financial service; and
(l) “trade in financial services” means the supply of a financial service:
(i) from the territory of a Party into the territory of another Party (mode 1);
(ii) in the territory of a Party to the service consumer of another Party (mode 2);
(iii) by a financial service supplier of a Party, through commercial presence in the territory of another Party (mode 3); and
(iv) by a financial service supplier of a Party, through presence of natural persons in the territory of another Party (mode 4).
Article 38. Most-favoured Nation Treatment
1. The rights and obligations of the Parties with respect to most-favoured nation treatment shall be governed by the GATS.
2. If a Party enters into an agreement with a non-Party which has been notified under Article V of the GATS, it shall, upon request from another Party, afford adequate opportunity to the other Parties to negotiate, on a mutually advantageous basis, the benefits granted therein.
Article 39. Market Access
1. With respect to market access through the modes of supply identified in Article 37 (Definitions), each Party shall accord financial services and financial service suppliers of the other Party treatment no less favourable than that provided for under the terms, limitations and conditions agreed and specified in its Schedule referred to in Article 43 (Schedule of specific commitments).
2. In sectors where market-access commitments are undertaken, the measures which a Party shall not maintain or adopt either on the basis of a regional subdivision or on the basis of its entire territory, unless otherwise specified in its Schedule, are defined as:
(a) limitations on the number of financial services suppliers whether in the form of numerical quotas, monopolies, exclusive service suppliers or the requirements of an economic needs test;
(b) limitations on the total value of financial service transactions or assets in the form of numerical quotas or the requirement of an economic needs test;
(c) limitations on the total number of financial service operations or on the total quantity of service output expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test; (1)
(d) limitations on the total number of natural persons that may be employed in a particular financial service sector or that a financial service supplier may employ and who are necessary for, and directly related to, the supply of a specific financial service in the form of numerical quotas or the requirement of an economic needs test;
(e) measures which restrict or require specific types of legal entity or joint venture through which a financial service supplier of the other Party may supply a financial service; and
(f) limitations on the participation of foreign capital in terms of maximum percentage limit on foreign shareholding or the total value of individual or aggregate foreign investment.
Article 40. National Treatment
1. In the sectors inscribed in its Schedule referred to in Article 43 (Schedule of specific commitments), and subject to the conditions and qualifications set out therein, each Party shall accord to financial services and financial service suppliers of another Party, in respect of all measures affecting the supply of financial services, treatment no less favourable than that it accords to its own like financial services and financial service suppliers. (2)
2. A Party may meet the requirement of paragraph 1 by according to financial services and financial service suppliers of another Party, either formally identical treatment or formally different treatment to that it accords to its own like financial services and financial service suppliers.
3. Formally identical or formally different treatment shall be considered to be less favourable if it modifies the conditions of competition in favour of financial services or financial service suppliers of a Party compared to like financial services or financial service suppliers of another Party.
Article 41. Self-regulatory Organisations
When a Party requires a financial service supplier of another Party to be a member of, participate in, or have access to, a self-regulatory organisation in order to supply a financial service in its territory in the sectors inscribed in its Schedule, and subject to any conditions and qualifications set out therein, it shall ensure that the self-regulatory organisation observes the obligations of Article 40 (National treatment).
Article 42. Payment and Clearing Systems
Under terms and conditions that accord national treatment, each Party shall grant to financial service suppliers of another Party established in its territory access to payment and clearing systems operated by public entities, and to official funding and refinancing facilities available in the normal course of ordinary business. This Article is not intended to confer access to the Party’s lender of last resort facilities.
Article 43. Schedule of Specific Commitments
1. The specific commitment undertaken by each Party under Articles 39 (Market access) and 40 (National treatment) are set out in the Schedule included respectively in Annexes VIIIbis (Financial Services Schedule for Chile) for Chile and VIII (Schedules of Specific Commitments) for the EFTA States. With respect to sectors where such commitments are undertaken, each Schedule specifies:
(a) terms, limitations and conditions on market access;
(b) conditions and qualifications on national treatment;
(c) undertakings relating to additional commitments referred to in paragraph 3; and
(d) where appropriate, the time-frame for implementation of such commitments and the date of entry into force of such commitments.