2. Measures inconsistent with both Articles 39 (Market access) and 40 (National treatment) are inscribed in the column relating to Article 39 (Market access). In this case, the inscription is considered to provide a condition or qualification to Article 40 (National treatment) as well.
3. Where a Party undertakes specific commitments on measures affecting trade in financial services not subject to scheduling under Articles 39 (Market access) and 40 (National treatment), such commitments are inscribed in its Schedule as additional commitments.
Article 44. Effective and Transparent Regulation
1. Each Party shall promote regulatory transparency in financial services taking into account:
(a) the work undertaken by the Parties in the GATS and in other fora relating to trade in financial services;
(b) the importance of regulatory transparency, of identifiable policy objectives and of clear and consistently applied regulatory processes; and
(c) any consultations that the Parties may have between them.
2. In sectors where specific commitments are undertaken, each Party shall ensure that all measures of general application affecting trade in financial services are administered in a reasonable, objective and impartial manner.
3. Each Party shall maintain or establish, as soon as practicable, appropriate mechanisms for responding to inquiries from interested persons regarding measures of general application covered by this Section.
4. Each Party shall maintain 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 financial services. Where such procedures are not independent of the agency entrusted with the administrative decision concerned, the Party shall ensure that the procedures provide for an objective and impartial review.
5. Each Party shall ensure that measures relating to qualification requirements and procedures, and licensing requirements and procedures do not constitute unnecessary barriers to trade in financial services. In sectors in which a Party has undertaken specific commitments, such measures shall be:
(a) based on objective and transparent criteria, such as competence and the ability to supply the financial service;
(b) not more burdensome than necessary to ensure the quality of the financial service; and
(c) in the case of licensing procedures, not in themselves a restriction on the supply of the financial service.
6. Whenever measures referred to in paragraph 5 are prepared, adopted and applied in accordance with international standards applied by all Parties, it shall be rebuttably presumed to comply with the provisions of this Article.
7. The competent authorities of each Party shall make available to interested persons domestic requirements and procedures for completing applications relating to the supply of financial services.
8. Where a licence or authorisation is required for the supply of a financial service, the competent authorities of a Party shall make the requirements for such a licence or authorisation publicly available. The period of time normally required to reach a decision concerning an application for a licence or authorisation shall:
(a) be made available to the applicant upon request;
(b) be made publicly available; or
(c) be made available by a combination of both.
9. The competent authorities of each Party shall process expeditiously applications related to the supply of financial services submitted by service suppliers of another Party.
10. If the competent authorities of a Party require additional information from the applicant in order to process the application, they shall notify the applicant without undue delay.
11. Upon request by the applicant, the competent authorities of a Party shall provide, without undue delay, information concerning the status of the application.
12. The competent authorities of each Party shall notify the applicant of the outcome of the application promptly after a decision is made. Where a decision is made to deny an application, the reason for the denial shall be made known to the applicant.
13. Where an authorisation or licence is required for the supply of a financial service and if the applicable requirements are fulfilled, the competent authorities of a Party shall grant the applicant an authorisation or licence within six months after the submission of the application is considered complete under the domestic laws and regulations of that Party. If it is not feasible for a decision to be made within six months, the competent authority shall notify the applicant without undue delay and shall endeavour to make a decision within a reasonable period of time thereafter.
Article 45. Prudential Measures
1. Notwithstanding any other provision of Chapters III (Trade in Services and Establishment) or Vter (Digital Trade), a Party shall not be prevented from adopting or maintaining reasonable measures for prudential reasons, including for:
(a) the protection of investors, depositors, policy-holders, policy-claimants, persons to whom a fiduciary duty is owed by a financial service supplier, or any similar financial market participants; or
(b) ensuring the integrity and stability of that Party’s financial system.
2. Where such measures do not conform with the provisions of Chapters III (Trade in Services and Establishment) or Vter (Digital Trade), they shall not be used as a means of avoiding that Party’s commitments or obligations under Chapters III (Trade in Services and Establishment) or Vter (Digital Trade).
Article 46. Confidential Information
Nothing in this Section:
(a) shall require any Party to provide confidential information, the disclosure of which would impede law enforcement, or otherwise be contrary to the public interest, or which would prejudice legitimate commercial interests of particular enterprises, public or private; or
(b) shall be construed to require a Party to disclose information relating to the affairs and accounts of individual customers or any confidential or proprietary information in the possession of public entities.
Article 47. International Standards
Each Party shall endeavour to ensure that internationally agreed standards for regulation and supervision in the financial services sector are implemented and applied in its territory. Such internationally agreed standards are, inter alia, the “Core Principles for Effective Banking Supervision” of the Basel Committee, the “Insurance Core Principles” of the International Association of Insurance Supervisors and the “Objectives and Principles of Securities Regulation” of the International Organisation of Securities Commissions.
Article 48. Recognition of Prudential Measures
Where a Party recognises, by agreement or arrangement, prudential measures of a non-Party in determining how the Party’s measures relating to financial services shall be applied, that Party shall afford adequate opportunity for another Party to negotiate its accession to such an agreement or arrangement, or to negotiate a comparable agreement or arrangement with it, under circumstances in which there would be equivalent regulation, oversight, implementation of such regulation and, if appropriate, procedures concerning the sharing of information between the parties to the agreement or arrangement. Where a Party accords such recognition autonomously, it shall afford adequate opportunity for another Party to demonstrate that such circumstances exist.
Article 49. Movement of Natural Persons
1. This Section applies to measures affecting natural persons who are financial service suppliers of a Party, and natural persons of a Party who are employed by a financial service supplier of a Party, with respect to the supply of a financial service. Natural persons covered by a Party’s specific commitments shall be allowed to supply the financial 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 any Party under the terms of a specific commitment. (3)
Article 50. Transfers of Information and Data Processing
No Party shall take measures that prevent transfers of information into or out of the Party’s territory or the processing of financial information, where such transfers of information or processing of financial information, are necessary for the conduct of the ordinary business of a financial service supplier of another Party. Nothing in this Article shall restrict the right of a Party to protect personal data, personal privacy and the confidentiality of individual records and accounts so long as such right is not used to circumvent the provisions of this Section.
Article 51. Sub-Committee on Financial Services
1. A Sub-Committee on financial services composed of representatives of the Parties is hereby established.
2. The mandate of the Sub-Committee on financial services is set out in Annex VIIIter (Mandate of the Sub-Committee on financial services).
Article 52. Consultations
1. A Party may request expert consultations with another Party regarding any matter arising under this Section between the requesting Party and the requested Party. The requested Party shall give sympathetic consideration to the request. The Parties shall aim at finding an appropriate solution and report the results of their consultations to the Sub-Committee on financial services.
2. Each Party involved in consultations according to paragraph 1 shall designate officials of the authorities specified in paragraph 6 of Annex VIIIter (Mandate of the Sub-Committee on financial services).
3. The Parties involved in the consultations shall treat any confidential or proprietary information exchanged in the same manner as the Party providing the information.
Article 53. Dispute Settlement
In addition to the requirements set out in paragraph 49 of Annex XVII (Model Rules of Procedure for the Conduct of Arbitration Panels), the chair of the arbitration panel for disputes on prudential issues and other financial matters shall have the necessary experience or expertise relevant to the specific financial service under dispute.
Section III. Establishment
Article 54. Coverage
This Section shall apply to establishment in all sectors, with the exception of establishment in services sectors including financial services.
Article 55. Definitions
For the purposes of this Section,
(a) "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;
(b) "juridical person of a Party" means a juridical person constituted or otherwise organised under the law of an EFTA State or of Chile and that is engaged in substantive business operations in Chile or in the EFTA State concerned;
(c) "natural person" means a national of an EFTA State or of Chile according to their respective legislation;
(d) "establishment" means:
(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 performing an economic activity.
As regards natural persons, this shall not extend to seeking or taking employment in the labour market or confer a right of access to the labour market of a Party.
Article 56. National Treatment
With respect to establishment, and subject to the reservations set out in Annex X, each Party shall grant to juridical and natural persons of the other Party treatment no less favourable than that it accords to its own juridical and natural persons performing a like economic activity.
Article 57. Reservations
1. National treatment as provided for under Article 56 shall not apply to:
(a) any reservation that is listed by a Party in Annex X;
(b) an amendment to a reservation covered by paragraph (a) to the extent that the amendment does not decrease the conformity of the reservation with Article 56;
(c) any new reservation adopted by a Party, and incorporated into Annex X which does not affect the overall level of commitments of that Party under this Agreement; to the extent that such reservations are inconsistent with Article 56.
2. As part of the reviews provided for in Article 59 the Parties undertake to review at least every three years the status of the reservations set out in Annex X with a view to reducing or removing such reservations.
3. A Party may, at any time, either upon the request of another Party or unilaterally, remove in whole or in part reservations set out in Annex X by written notification to the other Parties.
4. A Party may, at any time, incorporate a new reservation into Annex X in accordance with paragraph 1(c) of this Article by written notification to the other Parties. On receiving such written notification, the other Parties may request consultations regarding the reservation. On receiving the request for consultations, the Party incorporating the new reservation shall enter into consultations with the other Parties.
Article 58. Right to Regulate
Subject to the provisions of Article 56, each Party may regulate the establishment of juridical and natural persons.
Article 59. Final Provisions
With the objective of progressive liberalisation of investment conditions, the Parties affirm their commitment to review the investment legal framework, the investment environment and the flow of investment between them consistent with their commitments in international investment agreements, no later than three years after the entry into force of this Agreement.
Section IV. Payments and Capital Movements
Article 60. Objective and Scope
1. The Parties shall aim at the liberalisation of current payments and capital movements between them, in conformity with the commitments undertaken in the framework of the international financial institutions and with due consideration to each Party's currency stability.
2. This Section applies to all current payments and capital movements between the Parties. Specific provisions on current payments and capital movements are set out in Annex XI.
Article 61. Current Account
The Parties shall allow, in freely convertible currency and in accordance with the Articles of Agreement of the International Monetary Fund, any payments and transfers of the Current Account between the Parties.
Article 62. Capital Account
The Parties shall allow the free movements of capital relating to direct investments made in accordance with the laws of the host country and investments made in accordance with the provisions of Sections Trade in Services, Financial Services and Establishment of this Chapter, and the liquidation or repatriation of these capitals and of any profit stemming therefrom.
Article 63. Exceptions and Safeguard Measures
1. Where, in exceptional circumstances, payments and capital movements between the Parties cause or threaten to cause serious difficulties for the operation of monetary policy or exchange rate policy in any Party, the Party concerned may take safeguard measures with regard to capital movements that are strictly necessary for a period not exceeding one year. The application of safeguard measures may be extended through their formal reintroduction.
2. The Party adopting the safeguard measures shall inform the other Party forthwith and present, as soon as possible, a time schedule for their removal.
Article 64. Final Provisions
The Parties shall consult each other with a view to facilitating the movement of capital between them in order to promote the objectives of this Agreement.
Section V. Common Provisions
Article 65. Relation to other International Agreements
With respect to matters related to this Chapter, the Parties confirm the rights and obligations existing under any bilateral or multilateral agreements to which they are a party.
Article 66. General Exceptions
1. For the purposes of this Chapter, Article XIV of the GATS is incorporated into and made part of this Agreement, mutatis mutandis.
2. The Parties understand that the measures referred to in Article XIV(b) of the GATS include environmental measures necessary to protect human, animal or plant life or health.
Chapter IV. Protection of Intellectual Property
Article 67. Protection of Intellectual Property
1. The Parties shall grant and ensure adequate, effective and non-discriminatory protection of intellectual property rights, and provide for measures for the enforcement of such rights against infringement thereof, including counterfeiting and piracy, in accordance with this Chapter, Annex XII (Protection of Intellectual Property), and the international agreements referred to therein, and Appendix (Geographical Indications).
2. The Parties shall accord to nationals of another Party treatment no less favourable than that they accord to their own nationals. Exemptions from this obligation must be in accordance with the substantive provisions of Articles 3 and 5 of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement).
3. The Parties shall grant to nationals of another Party treatment no less favourable than that accorded to nationals of another Party. Exemptions from this obligation must be in accordance with the substantive provisions of the TRIPS Agreement, in particular Articles 4 and 5.
4. Subject to paragraphs 2 and 3, each Party shall be free to establish its regime for the exhaustion of intellectual property rights.
5. Upon request of a Party, the Parties shall review this Chapter, Annex XII (Protection of Intellectual Property) and Appendix (Geographical Indications), with a view to further improving the levels of protection and to avoiding or remedying trade distortions caused by actual levels of protection of intellectual property rights.
Article 68. Principles
1. The Parties reaffirm the principles set forth in Article 8 of the TRIPS Agreement.
2. Taking into consideration the underlying public policy objectives of domestic systems, the Parties recognise the need to promote innovation and creativity; as well as to facilitate the diffusion of information, knowledge, technology, culture and the arts through their respective intellectual property systems, while respecting the principles of transparency, and taking into account the interests of relevant stakeholders, including right holders, users and the general public.
Article 69. Intellectual Property and Public Health
1. The Parties recognise the importance of the Declaration on the TRIPS Agreement and Public Health, adopted on 14 November 2001 (Doha Declaration) by the Ministerial Conference of the WTO.
2. The Parties shall implement the Amendment of the TRIPS Agreement as adopted by the WTO General Council on 6 December 2005 (TRIPS Amendment).
3. This Chapter and Annex XII (Protection of Intellectual Property) shall be without prejudice to the Doha Declaration and the TRIPS Amendment.
Chapter V. Government Procurement
Article 70. Scope and Coverage
1. This Chapter applies to any measure of a Party regarding covered procurement. For the purposes of this Chapter, “covered procurement” means procurement for governmental purposes:
(a) of goods, services, or any combination thereof:
(i) as specified in Appendices 1 to 7 and 12 to Annex XIII (Government Procurement); and
(ii) not procured with a view to commercial sale or resale, or for use in the production or supply of goods or services for commercial sale or resale;
(b) by any contractual means, including purchase, lease, rental or hire purchase, with or without an option to buy, and public works concessions as specified in Appendix 7 to Annex XIII (Government Procurement);
(c) for which the value, as estimated in accordance with the rules specified in Appendix 10 to Annex XIII (Government Procurement) equals or exceeds the relevant threshold specified in Appendices 1 to 3 to Annex XIII (Government Procurement) at the time of publication of a notice in accordance with Article 80 (Notices);
(d) by a procuring entity; and
(e) that is not otherwise excluded pursuant to paragraph 2 or Annex XIII (Government Procurement).
2. This Chapter shall not apply to:
(a) acquisition or rental of land, existing buildings, or other immovable property or the rights thereon;
(b) non-contractual agreements or any form of assistance that a Party provides, including cooperative agreements, grants, loans, equity infusions, guarantees, fiscal incentives, subsidies and sponsorships agreements;
(c) procurement or acquisition of fiscal agency or depository services, liquidation and management services for regulated financial institutions or services related to sale, redemption and distribution of public debt, including loans and government bonds, notes and other securities;
(d) public employment contracts;
(e) procurement conducted:
(i) for the specific purpose of providing international assistance, including development aid;
(ii) under a particular procedure or condition of an international agreement relating to the stationing of troops or relating to the joint implementation by the signatory countries of a project; or
(ii) under a particular procedure or condition of an international organisation, or funded by international grants, loans or other assistance where the applicable procedure or condition would be inconsistent with this Chapter.
(f) financial services.
Article 71. Definitions
For the purposes of this Chapter:
(a) “commercial goods or services” means goods or services of a type generally sold or offered for sale in the commercial marketplace to, and customarily purchased by, non-governmental buyers for non-governmental purposes;
(b) “construction service” means a service that has as its objective the realisation by whatever means of civil or building works, based on Division 51 of the United Nations Provisional Central Product Classification (CPC);
(c) “days” means calendar days;
(d) “electronic auction” means an iterative process that involves the use of electronic means for the presentation by suppliers of either new prices, or new values for quantifiable non-price elements of the tender related to the evaluation criteria, or both, resulting in a ranking or re-ranking of tenders;
(e) “in writing” or “written” means any worded or numbered expression that can be read, reproduced, and later communicated, including electronically transmitted and stored information;
(f) “limited tendering” means a procurement method whereby the procuring entity contacts a supplier or suppliers of its choice;
(g) “measure” means any law, regulation, procedure, administrative guidance or practice, or any action of a procuring entity relating to a covered procurement;
(h) “multi-use list” means a list of suppliers that a procuring entity has determined satisfy the conditions for participation in that list, and that the procuring entity intends to use more than once;
(i) “notice of intended procurement” means a notice published by a procuring entity inviting interested suppliers to submit a request for participation, a tender, or both;
(j) “notice of planned procurement” means a notice published by a procuring entity regarding its future procurement plans;
(k) “offset” means any condition or undertaking that encourages local development or improves a Party’s balance-of-payments accounts, such as the use of domestic content or of a domestic supplier, the licensing of technology, technology transfer, investment, counter-trade and similar action or requirement;
(l) “open tendering” means a procurement method whereby all interested suppliers may submit a tender;
(m) “person” means a natural person or a juridical person;
(n) “procuring entity” means an entity covered under Appendices 1 to 3 to Annex XIII (Government Procurement);
(o) “qualified supplier” means a supplier that a procuring entity recognises as having satisfied the conditions for participation;