1. Recognising the importance of enhancing consumer trust in digital trade, each Party shall adopt or maintain measures to ensure the effective protection of consumers engaging in electronic commerce transactions, including but not limited to measures that:
a) proscribe fraudulent and deceptive commercial practices;
b) require suppliers of goods and services to act in good faith and abide by fair commercial practices, including through the prohibition of charging consumers for unsolicited goods and services;
c) require suppliers of goods or services to provide consumers with clear and thorough information regarding their identity and contact details'!, as well as regarding the goods or services, the transaction and the applicable consumer rights; and
d) grant consumers access to redress to claim their rights, including a right to remedies in cases where goods or services are paid and not delivered or provided as agreed.
(11 Tn the case of intermediary service suppliers, this also includes the identity and contact details of the actual supplier of the good or the service.
2. The Parties recognise the importance of cooperation between their respective national consumer protection agencies or other relevant bodies on activities related to electronic commerce in order to enhance consumer trust.
Article 19.11. Unsolicited Direct Marketing Communications
1. Each Party shall ensure that end-users are effectively protected against unsolicited direct marketing communications.
2. Each Party shall adopt or maintain effective measures regarding unsolicited direct marketing communications that:
a) require suppliers of unsolicited direct marketing communications to ensure that recipients are able to prevent ongoing reception of those communications; or
b) require the consent, as specified according to the laws and regulations of each Party, of recipients to receive direct marketing communications.
3. Each Party shall ensure that direct marketing communications are clearly identifiable as such, clearly disclose on whose behalf they are made and contain the necessary information to enable end-users to request cessation free of charge and at any moment.
Article 19.12. Prohibition of Mandatory Transfer of or Access to Source Code
â
. No Party may require the transfer of, or access to, source code of software owned by a juridical or natural person of the other Party.
2. For greater certainty:
a) the general exception, security exception and prudential carve-out can apply to measures of a Party adopted or maintained in the context of a certification procedure;
b) paragraph 1 does not apply to the voluntary transfer of or granting of access to source code on a commercial basis by a person of the other Party, for instance in the context of a public procurement transaction or a freely negotiated contract;
c) nothing in paragraph 1 prevents a person of a Party from licencing its software on a free and open source basis.
3. Nothing in this Article shall affect:
a) requirements by a court, administrative tribunal or, by a competition authority to remedy a violation of competition laws;
b) protection and enforcement of intellectual property rights; and
c) the right of a Party to take measures in accordance with Article 21.3 [security and general exceptions of the Public Procurement Title].
Article 19.13. Cooperation on Regulatory Issues with Regard to Digital Trade1. the Parties Shall Maintain a Dialogue on Regulatory Issues Raised by Digital Trade, Which Shall Inter Alia Address the Following Issues:
the recognition and facilitation of interoperable cross-border electronic trust and authentication services;
the treatment of direct marketing communications; the protection of consumers in the ambit of digital trade; and
any other issue relevant for the development of digital trade.
2. Such cooperation shall focus on exchange of information on the Partiesâ respective legislation on these issues as well as on the implementation of such legislation.
3. For greater certainty, this provision shall not apply to a Partyâs rules and safeguards for the protection of personal data and privacy, including on cross-border data transfers of personal data.
Article 19.14. Review
The Parties shall review the implementation of this Title at the request of either Party, particularly in the light of relevant changes affecting digital trade that might arise from new business models or technologies.
Chapter 20.
CAPITAL MOVEMENTS, PAYMENTS AND TRANSFERS AND TEMPORARY SAFEGUARD MEASURES!
Article 20.1. Objective and Scope
The objective of this Chapter is to enable the free movement of capital and payments related to transactions liberalised under this Agreement.
Article 20.2. Current Account
Without prejudice to other provisions of this Agreement, each Party shall allow, in freely convertible currency and in accordance with the provisions of the Articles of the Agreement of the International Monetary Fund, as applicable, any payments and transfers with respect to transactions on the current account of the balance of payments that fall within the scope of this Agreement.
Article 20.3. Capital Movements
Without prejudice to other provisions of this Agreement, each Party shall allow, with regard to transactions on the capital and financial account of the balance of payments, the free movement of capital, for the purpose of liberalisation of investment and other transactions as provided for in Chapter 10 [Investment Liberalisation], Chapter 11 [Cross-border trade in services], and Chapter 18 [Financial Services].
Article 20.4. Application of Laws and Regulations Relating to Capital Movements, Payments or Transfers
The provisions of Articles 20.1 and 20.2 of this Chapter shall not be construed as preventing a Party from applying its laws and regulations relating to:
(a) bankruptcy, insolvency, or the protection of the rights of creditors;
(b) issuing, trading or dealing in financial instruments such as securities, futures or derivatives;
(c) financial reporting or record keeping of capital movements, payments or transfers where necessary to assist law enforcement or financial regulatory authorities;
1 For greater certainty, this Chapter is subject to Annex ... (Transfers â Chile)
(d) criminal or penal offenses, deceptive or fraudulent practices;
(e) ensuring compliance with orders or judgments in judicial or administrative proceedings; or
(f) social security, public retirement or compulsory savings schemes.
2. The laws and regulations referred to in paragraph 1 shall be applied in an equitable and non-discriminatory manner, and not in a way that would constitute a disguised restriction on capital movements, payments or transfers.
Article 20.5. Temporary Safeguard Measures
In exceptional circumstances of serious difficulties for the operation of the European Union's economic and monetary union, or threat thereof, the European Union may adopt or maintain safeguard measures with regard to capital movements, payments or transfers for a period not exceeding six months. Those measures shall be limited to the extent that is strictly necessary.
Article 20.6. Restrictions In Case of Balance of Payments and External Financial Difficulties
1. Where a Party experiences serious balance-of-payments or external financial difficulties, or threat thereof, it may adopt or maintain restrictive measures with regard to capital movements, payments or transfersâ.
2. The measures referred to in paragraph 1 shall:
(a) be consistent with the Articles of the Agreement of the International Monetary Fund, as applicable;
(b) not exceed those necessary to deal with the circumstances described in paragraph 1;
(c) be temporary and shall be phased out progressively as the situation specified in paragraph 1 improves;
(d) avoid unnecessary damage to the commercial, economic and financial interests of the other Party;
(e) be non-discriminatory compared to third countries in like situations.
3. In the case of trade in goods, each Party may adopt restrictive measures in order to safeguard its external financial position or balance-of-payments. These measures shall be in accordance with the General Agreement on Trade and Tariffs (GATT) and the Understanding on the Balance of Payments provisions of the GATT 1994.
? For greater certainty, serious balance of payments or external financial difficulties, or threat thereof, may be caused among other factors by serious difficulties related to monetary or exchange rate policies, or threat thereof.
4. In the case of trade in services, each Party may adopt restrictive measures in order to safeguard its external financial position or balance of payments. These measures shall be in accordance with Article XII of the General Agreement on Trade in Services (GATS).
5. A Party maintaining or having adopted measures referred to in paragraphs 1 and 2 of this Article shall promptly notify them to the other Party.
6. If restrictions are adopted or maintained under this Article, the Parties shall promptly hold consultations in the [EU: Committee on Trade in Services and Investment â to be adapted] unless consultations are held in other fora, to which both Parties are members. The consultations shall assess the balance-of-payments or external financial difficulty that led to the respective measures, taking into account, inter alia, such factors as:
(a) the nature and extent of the difficulties; (b) the external economic and trading environment; and (c) alternative corrective measures which may be available.
7. The consultations pursuant to paragraph 6 shall address the compliance of any restrictive measures with paragraphs 1 to 2. All relevant findings of statistical or factual nature presented by the IMF, where available, shall be accepted and conclusions shall take into account the assessment by the IMF of the balance-of-payments and the external financial situation of the Party concerned.
ANNEX X
TRANSFERS-CHILE
1. Notwithstanding Chapter 20 [Capital Movements, Payments and Transfers and Temporary Safeguard Measures], Chile reserves the right of the Central Bank of Chile (Banco Central de Chile) to maintain or adopt measures in conformity with Law 18.840, Constitutional Organic Law of the Central Bank of Chile (Ley 18.840, Ley Orgdnica Constitucional del Banco Central de Chile) , Decreto con Fuerza de Ley N°3 de 1997, Ley General de Bancos (General Banking Act) and Ley de Mercado de Valores N°18.045 (Securities Market Law), in order to ensure currency stability and the normal operation of domestic and foreign payments. Such measures include, inter alia, the establishment of restrictions or limitations on current payments and transfers (capital movements) to or from Chile, as well as transactions related to them, such as requiring that deposits, investments or credits from or to a foreign country, be subject to a reserve requirement (encaje).
2. Notwithstanding paragraph 1, the reserve requirement that the Central Bank of Chile can apply pursuant to Article 49 N°2 of Law 18.840, shall not exceed 30 percent of the amount transferred and shall not be imposed for a period which exceeds two years.
Chapter 21. PUBLIC PROCUREMENT
Article 21.1. Definitions
For the purposes of this Chapter:
(a)
(b)
(c) (d)
(e)
(f)
(g)
(h)
@
G)
{k)
@ (m)
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;
construction service means a service that has as its objective the realization by whatever means of civil or building works, based on Division 51 of the United Nations Provisional Central Product Classification (CPC);
days means calendar days;
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;
in writing or written means any worded or numbered expression that can be read, reproduced and later communicated. It may include electronically transmitted and stored information;
limited tendering means a procurement method whereby the procuring entity contacts a supplier or suppliers of its choice;
measure means any law, regulation, procedure, administrative guidance or practice, or any action of a procuring entity relating to a covered procurement;
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;
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;
offset means any condition or undertaking that encourages local development or improves a Partyâs balance-of-payments accounts, such as the use of domestic content, the licensing of technology, investment, counter trade and similar action or requirement;
open tendering means a procurement method whereby all interested suppliers may submit a tender;
person means a natural person or a juridical person;
procuring entity means an entity covered under Annexes X-1, X-2 or X-3 of a Party's Market Access Schedule for this Chapter;
(n) qualified supplier means a supplier that a procuring entity recognizes as having satisfied the conditions for participation;
(0) selective tendering means a procurement method whereby only qualified suppliers are invited by the procuring entity to submit a tender;
(p) services includes construction services, unless otherwise specified;
(q) standard means a document approved by a recognized body that provides for
common and repeated use, rules, guidelines or characteristics for goods or services, or related processes and production methods, with which compliance is not mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a good, service, process or production method;
@) supplier means a person or group of persons that provides or could provide goods or services; and (s) technical specification means a tendering requirement that:
(i) sets out the characteristics of:
(i.1) goods to be procured, including quality, performance, safety and dimensions, or the processes and methods for their production; or
(i.2) services to be procured, including quality, performance, safety or the processes or methods for their provision, or
(i) addresses terminology, symbols, packaging, marking or labelling requirements, as they apply to a good or service.
Article 21.2. Scope and Coverage
Application of the Chapter
1. This Chapter applies to any measure regarding covered procurement, whether or not it is conducted exclusively or partially by electronic means.
2. For the purposes of this Chapter, covered procurement means procurement for governmental purposes:
(a) of a good, a service, or any combination thereof: 6D) as specified in each Party's Annexes to its Market Access Schedule
(b)
(c)
(d) (e)
for this Chapter; and
Gi) not procured with a view to commercial sale or resale, or for use in the production or supply of a good or a service for commercial sale or tesale;
by any contractual means, including: purchase; lease; and rental or hire purchase, with or without an option to buy;
for which the value, as estimated in accordance with paragraphs 6 through 8, equals or exceeds the relevant threshold specified in a Party's Annexes to its Market Access Schedule for this Chapter, at the time of publication of a notice in accordance with Article 21.6;
by a procuring entity; and
that is not otherwise excluded from coverage in paragraph 3 or a Party's Annexes to its Market Access Schedule for this Chapter.
3. Except where provided otherwise in a Party's Annexes to its Market Access Schedule for this Chapter, this Chapter does not apply to:
(a)
(b)
(c)
(d) (e)
the acquisition or rental of land, existing buildings or other immovable property or the rights thereon;
non-contractual agreements or any form of assistance that a Party provides, including cooperative agreements, grants, loans, subsidies, equity infusions, guarantees and fiscal incentives;
the procurement or acquisition of fiscal agency or depository services, liquidation and management services for regulated financial institutions or services related to the sale, redemption and distribution of public debt, including loans and government bonds, notes and other securities;
public employment contracts; procurement conducted:
@) for the specific purpose of providing international assistance, including development aid;
Gi) under the 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
Gii) under the particular procedure or condition of an international organisation, or funded by international grants, loans or other assistance if the applicable procedure or condition would be inconsistent with this Chapter.
(a) Financial services.
4. A procurement subject to this Chapter shall be all procurement covered by the Market Access Schedules of Chile and the European Union, in which each Party's commitments are set out as follows:
(a)
(b)
(c) (d) (e)
(f) (g) (h) (i)
in Annex X-1, the central government entities whose procurement is covered by this Chapter;
in Annex X-2, the sub-central government entities whose procurement is covered by this Chapter;
in Annex X-3, all other entities whose procurement is covered by this Chapter; in Annex X-4, the goods covered by this Chapter;
in Annex X-5, the services, other than construction services, covered by this Chapter;
in Annex X-6, the construction services covered by this Chapter; in Annex X-7, public works concessions covered by this Chapter; in Annex X-8, any General Notes; and
in Annex X-9, the media in which the Party publishes its procurement notices, award notices, and other information related to its public procurement system as set out in this Chapter.
5. Where a procuring entity, in the context of covered procurement, requires persons not covered under a Party's Annexes to its Market Access Schedule for this Chapter to procure in accordance with particular requirements, Article 4 shall apply mutatis mutandis to such requirements.
Valuation
6. In estimating the value of a procurement for the purpose of ascertaining whether it is a covered procurement, a procuring entity shall:
(a)