Each Party shall permit the international maritime transport service suppliers of the other party to re-position owned or leased empty containers which are not being carried as cargo against payment, between ports of Chile or between ports of a Member State of the European Union.
Chapter 18. FINANCIAL SERVICES
Article 18.1. Scope1. this Chapter Applies to a Measure Adopted or Maintained by a Party Relating to:
(a) financial institutions of the other Party;
(b) investors of the other Party, and financial institutions of such investors in the Party's territory; and
(c) cross-border trade in financial services.
2. For greater certainty, the provisions of Chapter 10 (Investment Liberalisation) apply
(a) a measure relating to an investor of a Party in a covered enterprise that is not a financial institution but is supplying a financial service, or to such covered enterprise; and
(b) a measure, other than a measure relating to the supply of financial services, relating to an investor of a Party or a covered enterprise of that investor that is a financial institution.
3. Chapter 10 (Investment Liberalisation) and Chapter X (Cross-Border Trade in Services) shall apply to measures described in paragraph 1 only to the extent that those Chapters or Articles of those Chapters are incorporated into and made part of this Chapter.
4, Article 10.12 (Denial of Benefits) and Article XX (Cross Border Trade in Services- Denial of Benefits) are hereby incorporated into and made a part of this Chapter.
5. This Chapter shall not apply to a measure adopted or maintained by a Party relating
(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 or services forming part of a public retirement plan or statutory system of social security; or
(c) activities or services conducted for the account of the Party, with the guarantee or using the financial resources of the Party, including its public entities,
except that this Chapter shall apply to the extent that a Party allows any of the activities or services referred to in subparagraph (a) or (b) to be conducted by its financial institutions in competition with a public entity or a financial institution.
7. The provisions of Articles 18.3 (National Treatment), 18.5 (Most-Favoured-Nation Treatment), 18.6 Market Access, 18.7 (Cross-border trade in services), 18.8 (Senior Management and Boards of Directors) and 18.9 (Performance Requirements), shall not apply with respect to government procurement.
8. The provisions of Articles 18.3 (National Treatment), 18.5 (Most-Favoured-Nation Treatment), [18.6 Market Access,] 18.7 (Cross-border trade in services), and 18.8 (Senior Management and Boards of Directors), shall not apply with respect to subsidies granted by the Parties, including government-supported loans, guarantees and insurances.
Article 18.2. Definitions for the Purposes of this Chapter: (a) âfinancial Serviceâ Means a Service of a Financial Nature, Including Insurance
and insurance-related services, banking and other financial services (excluding insurance). Financial services include the following activities:
6D) insurance and insurance-related services
(A) _ direct insurance (including co-insurance):
(B)
(C)
(D)
(aa) life;
(bb) non-life;
teinsurance and retrocession;
insurance inter-mediation, such as brokerage and agency; and
services auxiliary to insurance, such as consultancy, actuarial, tisk assessment and claim settlement services.
Gi) banking and other financial services (excluding insurance):
(A)
(B)
(C)
(D)
()
(F)
acceptance of deposits and other repayable funds from the public;
lending of all types, including consumer credit, mortgage credit, factoring and financing of commercial transaction;
financial leasing;
all payment and money transmission services, including credit, charge and debit cards, travellers cheques and bankers drafts;
guarantees and commitments;
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);
(G)
(A)
@
@)
{K)
(L)
(bb) foreign exchange;
(cc) derivative products including, but not limited to, futures and options;
exchange rate and interest rate instruments, inclu (dd) hange rate and interest rate instr ts, including products such as swaps, forward rate agreements;
(ee) transferable securities;
(ff) other negotiable instruments and financial assets, including bullion;
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;
money broking;
asset management, such as cash or portfolio management, all forms of collective investment management, pension fund management, custodial, depository and trust services;
settlement and clearing services for financial assets, including securities, derivative products, and other negotiable instruments;
provision and transfer of financial information, and financial data processing and related software;
advisory, intermediation and other auxiliary financial services on all the activities listed in subparagraphs (A) through (K), including credit reference and analysis, investment and
portfolio research and advice, advice on acquisitions and on corporate restructuring and strategy.
cross-border financial service supplier of a Party means a person of a Party that is engaged in the business of supplying a financial service within the territory of the Party and that seeks to supply or supplies a financial service through the cross-border supply of such service;
cross-border supply of financial services or cross-border trade in financial services means the supply of a financial service:
(a) from the territory of a Party into the territory of the other Party; or
(b) in the territory of a Party by a person of that Party to a services consumer of the other Party;
financial institution means a supplier that supplies one or more of the services defined as being financial services in this Article, if the supplier is regulated or supervised in respect of the supply of those services as a financial institution under the law of the Party in whose territory it is located, including a branch in the territory of the Party of that financial service supplier whose head offices are located in the territory of the other Party;
(b) âfinancial service supplier of a Partyâ means any natural or juridical person of a Party that seeks to supply or supplies a financial service but does not include a public entity.
investor of a Party means a natural person or a juridical person of such Party that seeks to establish, is establishing or has established a financial institution in the territory of the other Party.
(c) ânew financial serviceâ means a service of a financial nature including services related to existing and new products or the manner in which a product is delivered, that is not supplied by any financial service supplier in the territory of a Party but which is supplied in the territory of the other Party;
(d) âpublic entityâ means:
@) a government, a central bank or a monetary authority, of a Party, or any entity owned or controlled by a Party, that is principally engaged in catrying out governmental functions or activities for governmental purposes, but does not include an entity principally engaged in supplying financial services on commercial terms; or
(ii) a private entity, that performs functions normally performed by a central bank or monetary authority, when exercising those functions.
(e) âself-regulatory organisationâ means a non-governmental body, including a securities or futures exchange or market, clearing agency, or other organisation or association, that exercises regulatory or supervisory authority over financial service suppliers or financial institutions by statute or delegation from central, regional or local governments or authorities, where applicable.
Article 18.3. National Treatment
1. Article 10.6 (National treatment) is incorporated into and made a part of this Chapter and applies to treatment of investors of the other Party and their covered enterprises that are financial institutions.
2. The treatment accorded by a Party to investors of the other Party and their covered enterprises that are financial institutions under Article 10.6 (National treatment) means treatment accorded to its own investors in financial institutions and their enterprises that are financial institutions.
[EU comment: the changes in para 2 above reflect the drafting agreed between CL and the EU in the last round held in October 2022. However, on reflection we believe that these changes were not well thought, therefore we propose to go back to the original drafting agreed in 2021: The treatment accorded by a Party to its own investors and enterprises of its own investors under Article 10.6 (National treatment) means treatment accorded to its own investors in financial institutions and their enterprises that are financial institutions. ]
Article 18.4. Public Procurement
1. Each Party shall ensure that financial institutions of the other Party established in its territory are accorded treatment no less favourable than that accorded, in like situations, to its own financial institutions with respect to any measure regarding the purchase of goods or services by a procuring entity for governmental purposes.
2. The application of the national treatment obligation provided for in this Article remains subject to the security and general exceptions defined in Article I of the GP Chapter of this Agreement.
Article 18.5. Most Favoured Nation Treatment
1. Article 10.8 (Most Favoured Nation Treatment) is incorporated into and made a part of this Chapter and applies to treatment of investors of the other Party and their covered enterprises that are financial institutions.
2. The treatment accorded by a Party to investors of the other Party and their covered enterprises that are financial institutions under Article 10.8 (Most Favoured Nation Treatment) means treatment accorded to investors of a third country and their enterprises that are financial institutions.
[EU comment: the changes in para 2 above reflect the drafting agreed between CL and the EU in the last round held in October 2022. However, on reflection we believe that these changes were not well thought therefore we propose to go back to the original drafting agreed in 2021, with only minor adaptation to ensure consistency with the terminology of Article 10.8. Para 2 should read: The treatment accorded by a Party to investors of a non- Party and to enterprises of such investors under Article 10.8 (Most Favoured Nation Treatment) means treatment accorded to investors in financial institutions of a non-Party and their enterprises that are financial institutions.
Article 18.6. Market Access
1, In the sectors or subsectors listed in Annex X (Market Access) where market access commitments are undertaken, neither Party shall adopt or maintain, with respect to market access through establishment or operation of financial institutions, either on the basis of its entire territory or on the basis of a territorial subdivision, a measure that:
(a) imposes limitations on:
6D) the number of financial institutions, whether in the form of numerical quotas, monopolies, exclusive service suppliers or the requirement of an economic needs test;
Gi) the total value of financial service transactions or assets in the form of numerical quotas or the requirement of an economic needs test;
Gii) the total number of financial service operations or the total quantity of financial services output expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test; or
(iv) the total number of natural persons that may be employed in a particular financial services sector or that a financial institution 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; or
(b) __ restricts or requires specific types of legal entity or joint venture through which a financial institution may supply a service.
2. For greater certainty, this Article does not prevent a Party from requiring a financial institution to supply certain financial services through separate legal entities if, under the law of the Party, the range of financial services supplied by the financial institution may not be supplied through a single entity.
Article 18.7. Cross-border Supply of Financial Services
1, Articles 11.5 (Cross-Border Trade in Services (National Treatment), 11.6 (Cross- Border Trade in Services (Most Favoured Nation), 11.8 (Cross-Border Trade in Services (Market Access), 11.7 (Cross-Border Trade in Services (Local Presence) are incorporated into and made part of this Chapter and apply to measures affecting cross-border financial service suppliers supplying the financial services specified in Section A of its Schedule in Annex XX (Financial Services Non-Conforming Measures).
2. 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 another Party located in the territory of a Party other than the permitting Party. This obligation does not require a Party to permit those suppliers to do business or solicit in its territory. A Party may define âdoing businessâ and âsolicitationâ for the purposes of this obligation provided that those definitions are not inconsistent with paragraph 1.
3. Without prejudice to other means of prudential regulation of cross-border trade in financial services, a Party may require the registration or authorisation of cross-border financial service suppliers of another Party and of financial instruments.
Article 18.8. Senior Management and Boards of Directors
A Party shall not require that a financial institution of the other Party, which is established in the first Party, appoints natural persons of a particular nationality as members of boards of directors or to a senior management position, such as executives or managers.
Article 18.9. Performance Requirements
1. Neither Party may, in connection with the establishment or operation of any financial institution of a Party or of a non-Party in its territory, impose or enforce any requirement, or enforce any commitment or undertaking to:
2.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
@
G)
export a given level or percentage of goods or services;
achieve a given level or percentage of domestic content;
purchase, use or accord a preference to goods produced or services provided in its territory, or to purchase goods or services from natural persons or enterprises in its territory;
relate in any way the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows associated with such financial institution;
restrict sales of goods or services in its territory that such financial institution produces or provides by relating such sales in any way to the volume or value of its exports or foreign exchange earnings;
transfer technology, a production process or other proprietary knowledge to a natural person or an enterprise in its territory;
supply exclusively from the territory of the Party the goods it produces or the services it supplies to a specific regional or world market;
locate the headquarters of that financial institution for a specific region of the world, which is broader than the territory of the Party, or of the world market in its territory;
hire a given number or percentage of its nationals;
restrict the exportation or sale for export.
Neither Party may condition the receipt or continued receipt of an advantage, in connection with the establishment or the operation of a financial institution in its territory, of a Party or of a non-Party, on compliance with any of the following requirements:
(a)
(b)
(c)
(d)
(e)
to achieve a given level or percentage of domestic content;
to purchase, use or accord a preference to goods produced or services provided in its territory, or to purchase goods or services from natural persons or enterprises in its territory;
to relate in any way the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows associated with such financial institution;
to restrict sales of goods or services in its territory that such financial institution produces or provides by relating such sales in any way to the volume or value of its exports or foreign exchange earnings or
to restrict the exportation or sale for export.
3. Paragraph 2 shall not be construed as preventing a Party from conditioning the receipt or continued receipt of an advantage, in connection with the establishment or the operation of financial institutions in its territory by an investor of a Party or a non-Party, on compliance with a requirement to locate production, provide a service, train or employ workers, construct or expand particular facilities, or carry out research and development in its territory.
4. Paragraph 1 (f) does not apply
(a)
(b)
if a Party authorises use of an intellectual property right in accordance with Article 31 or article 31 bis of the TRIPS Agreement or adopts or maintains measures requiring the disclosure of data or propriety information that fall within the scope of, and are consistent with, paragraph 3 of Article 39 of the TRIPS Agreement; or
if the requirement is imposed or the commitment or undertaking is enforced by a court, administrative tribunal, or competition authority to remedy a practice determined after judicial or administrative process to be a violation of the Partyâs competition laws.
6. Paragraphs 1 (a), 1 (b), 1 (c), 2 (a) and 2 (b) do not apply to qualification requirements for goods or services with respect to participation in export promotion and foreign aid programmes;
7. Paragraphs 2 (a) and 2 (b) do not apply to requirements imposed by an importing Party relating to the content of goods necessary to qualify for preferential tariffs or preferential quotas.
8. For greater certainty, this Article shall not be construed as requiring a Party to permit a particular service to be supplied on a cross-border basis where that Party adopts or maintains restrictions or prohibitions on such provision of services which are consistent with the reservations, conditions or qualifications specified with respect to a sector, subsector or activity listed in Annex XXX (annexes with non-conforming measures or MA restrictions).
[DN: âWithin 30 days following the political conclusion of this agreement, Chile may amend its schedule as required. Any amendment must be limited to the listing of reservations that do not conform with the performance requirements obligation under this Chapter, in Section C [existing measures] of Annex XXX [FFSS]. In addition, the schedule sent by CL the 25 of October does not include a reservation covering performance requirements on social welfare, which will nonetheless be considered as making part of the current schedule. ]
9. This Article is without prejudice to commitments of a Party made under the WTO Agreement.
Article 18.10. Non-conforming Measures
1, Article 18.3 (National Treatment), Article 18.5 (MFN), Article 18.7 (Cross-Border Trade in Financial Services) and Article 18.8 (Senior Management and Boards of Directors), Article 18.9 (Performance Requirements) do not apply to:
(a) any existing non-conforming measure that is maintained by: For the European Union:
(i) the European Union as set out [in its Schedule in Annex XX (Financial Services Non-Conforming Measures)];
Gi) a central government of a Member State of the European Union, as set out in [Section A of its Schedule in Annex XX (Financial Services Non-Conforming Measures)];