5. If a disputing Party fails to abide by or comply with a final award, the Commission, on delivery of a request by a Party whose investor was a party to the arbitration, shall establish a panel under Article 19.6. The requesting Party may seek in such proceedings:
(a) a determination that the failure to abide by or comply with the final award is inconsistent with the obligations of this Agreement; and
(b) a recommendation that the Party abide by or comply with the final award.
6. A disputing investor may seek enforcement of an arbitration award under the ICSID Convention or the New York Convention regardless of whether proceedings have been taken under paragraph 5.
7. Acclaim that is submitted to arbitration under this Section shall be considered to arise out of a commercial relationship or transaction for purposes of Article I of the New York Convention.
Article 10.41. General Provision Time When a Claim Is Submitted to Arbitration
1. A claim is submitted to arbitration under this Section when:
(a) the request for arbitration under paragraph 1 of Article 36 of the ICSID Convention has been received by the Secretary-General;
(b) the notice of arbitration under Article 2 of Schedule C of the ICSID Additional Facility Rules has been received by the Secretary-General; or
(c) the notice of arbitration given under the UNCITRAL Arbitration Rules is received by the disputing Party.
Service of Documents
2. Delivery of notice and other documents on a Party shall be made to the place named for that Party in Annex 10.41.2.
Receipts under Insurance or Guarantee Contracts
3. In an arbitration under this Section, a Party shall not assert, as a defense, counterclaim, right of setoff or otherwise, that the disputing investor has received or will receive, pursuant to an insurance or guarantee contract, indemnification or other compensation for all or part of its alleged damages.
Publication of an Award
4. Annex 10.41.4 applies to the Parties specified in that Annex with respect to publication of an award.
Article 10.42. Exclusions
Without prejudice to the applicability or non-applicability of the dispute settlement provisions of this Section or of Chapter 19 to other actions taken by a Party pursuant to Article 20.2, a decision by a Party to prohibit or restrict the acquisition of an investment in its territory by an investor of the other Party, or investment of such an investor, pursuant to that Article shall not be subject to such provisions.
Section D. D - Investment and Cross-Border Trade In Services Committee
Article 10.43. Investment and Cross-Border Trade In Services Committee
1. The Parties hereby establish an Investment and Cross-Border Trade in Services Committee, comprising representatives of each Party, in accordance with Annex 10.43.
2. The Committee shall meet at least once a year, or in any time at request of a Party or the Commission.
3. The Committee shall perform, inter alia, the following functions:
(a) to overlook the execution and administration of this Chapter and Chapter 11;
(b) to discuss the subjects of bilateral interest regarding investment and cross-border services; and
(c) to examine subjects related to investment and cross-border services, which are being discussed at other international fora.
Annex 10.9.6.
1. Decree Law 600 (1974), the Foreign Investment Statute, is a voluntary and special investment regime for Chile.
2. As an alternative to the common regime for the entry of capital into Chile, potential investors may apply to the Foreign Investment Committee to be subject to the regime set out in Decree Law 600.
3. The obligations and commitments contained in this Chapter, do not apply to Decree Law 600, Foreign Investment Statute, to Law 18.657 Foreign Capital Investment Fund Law, to the continuation or prompt renewal of such laws, to amendments to those laws or to any special and/or voluntary investment regime that may be adopted in the future by Chile.
4. For greater certainty, it is understood that the Foreign Investment Committee of Chile has the right to reject applications to invest through Decree Law 600 and Law 18.657. Additionally, the Foreign Investment Committee has the right to regulate the terms and conditions of foreign investment under Decree Law 600 and Law 18.657.
Annex 10.11.
With respect to its obligations under Article 10.11, Chile reserves:
1. The right, without prejudice to paragraph 3 of this Annex, to maintain existing requirements that transfers from Chile of proceeds from the sale of all or any part of an investment of an investor of Korea or from the partial or complete liquidation of the investment may not take place until a period not to exceed:
(a) in the case of an investment made pursuant to Decree Law 600 Foreign Investment Statute (Decreto Ley 600, Estatuto de la Inversion Extranjera), one year has elapsed from the date of transfer to Chile; or
(b) in the case of an investment made pursuant to Law 18657 Foreign Capital Investment Fund Law (Ley 18.657, Ley Sobre Fondo de Inversiones de Capitales Extranjeros), five years have elapsed from the date of transfer to Chile;
2. The right to adopt measures, consistent with this Annex, establishing future special voluntary investment programs in addition to the general regime for foreign investment in Chile, except that any such measures may restrict transfers from Chile of proceeds from the sale of all or any part of an investment of an investor of Korea or from the partial or complete liquidation of the investment for a period not to exceed five years from the date of transfer to Chile; and
3. The right of the Central Bank of Chile to maintain or adopt measures in conformity with the Constitutional Organic Law of the Central Bank of Chile "Ley Organica Constitucional del Banco Central de Chile, Ley 18.840" (hereinafter, Law 18.840) or other legislation, in order to ensure currency stability and the normal operation of domestic and foreign payments. For this purpose, the Central Bank of Chile is empowered to regulate the supply of money and credit in circulation and international credit and foreign exchange operations. The Central Bank of Chile is empowered as well to issue regulations governing monetary, credit, financial, and foreign exchange matters. 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").
Notwithstanding the above, the reserve requirement that the Central Bank of Chile can apply pursuant to Article 49 No. 2 of Law 18.840, shall not exceed 30 per cent of the amount transferred and shall not be imposed for a period which exceeds two years.
Annex 10.20.
1. An investor of a Party, on its own behalf or on behalf of an enterprise, may only make a claim under Section C of this Chapter, in relation to investments made and materialized in accordance with the laws and regulations of the other Party.
2. Both Parties shall negotiate the coverage of Section C of this Chapter, as well as the modification of any other Articles in Section C they deem appropriate, taking into account the outcome of bilateral, regional or multilateral negotiations that address relevant issues, no later than one year after the entry into force of this Agreement.
Annex 10.4.1.2. Service of Documents
Chile
The place for the delivery of notice and other documents under Section C for Chile is:
Direccion de Asuntos Juridicos del Ministerio de Relaciones Exteriores de la Republica de Chile
Morandé 441
Santiago, Chile
Korea
The place for the delivery of notice and other documents under Section C for Korea is:
Office of International Legal Affairs, Ministry of Justice of the Republic of Korea
Government Complex, Kwacheon
Korea
Annex 10.41.4. Publication of an Award
Chile
Where Chile is the disputing Party, either Chile or a disputing investor that is a party to arbitration may make an award public.
Korea
Where Korea is the disputing Party, either Korea or a disputing investor that is a party to arbitration may make an award public.
Annex 10.43. Composition of the Investment and Cross-Border Trade in Services Committee
For purposes of Article 10.43, the Committee shall comprise:
(a) in the case of Chile, the General Directorate of International Economic Affairs of the Ministry of Foreign Affairs, or its successor; and
(b) in the case of Korea, the Director General of International Economic Cooperation Bureau of the Ministry of Finance and Economy, or its successor.
Chapter 11. CROSS-BORDER TRADE IN SERVICES
Article 11.1. Definitions for Purposes of this Chapter:
cross-border provision of a service or cross-border trade in services means the provision of a service:
(a) from the territory of a 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 a national of a Party in the territory of the other Party, but does not include the provision of a service in the territory of a Party by an investment, as defined in Article 10.1, in that territory;
enterprise means an "enterprise" as defined in Article 2.1, and a branch of an enterprise;
enterprise of a Party means an enterprise constituted or organized under the law of a Party and a branch, located in the territory of a Party and carrying out business activities there;
financial services means any service of a financial nature including those defined in paragraph 5(a) on Annex of Financial Services of GATS;
professional services means services, the provision of which requires specialized post- secondary education, or equivalent training or experience, and for which the right to practice is granted or restricted by a Party, but does not include services provided by trades-persons or vessel and aircraft crew members;
quantitative restriction means a non-discriminatory measure that imposes limitations on: (a) the number of service providers, whether in the form of a quota, a monopoly or an economic needs test, or by any other quantitative means; or (b) the operations of any service provider, whether in the form of a quota or an economic needs test, or by any other quantitative means;
service provider of a Party means a person of a Party that seeks to provide or provides a service; and
specialty air services means aerial mapping, aerial surveying, aerial photography, forest fire management, fire fighting, aerial advertising, flight training, aerial inspection and surveillance, and aerial spraying services.
Article 11.2. Scope and Coverage
1. This Chapter applies to measures adopted or maintained by a Party relating to cross-border trade in services by service providers of the other Party, including measures with respect to:
(a) the production, distribution, marketing, sale and delivery of a service;
(b) the purchase or use of, or payment for, a service;
(c) the access to and use of distribution and transportation systems in connection with the provision of a service;
(d) the presence in its territory of a service provider of the other Party; and
(e) the provision of a bond or other form of financial security as a condition for the provision of a service.
2. For purposes of this Chapter, measures adopted or maintained by a Party mean measures adopted or maintained by government or non-governmental bodies in the exercise of any regulatory, administrative or other governmental authority delegated to it by that government.
3. This Chapter does not apply to:
(a) cross-border trade in financial services;
(b) air services, including domestic and international air transportation services, whether scheduled or non-scheduled, and related services in support of air services, other than:
(i) aircraft repair and maintenance services during which an aircraft is withdrawn from service;
(ii) specialty air services;
(iii) glider towing, parachute jumping, aerial construction, heli-logging, aerial sightseeing; and
(iv) computerized reservation system;
(c) government procurement by a Party or a state enterprise;
(d) subsidies or grants provided by a Party or a state enterprise, including government-supported loans, guarantees and insurance; and
(e) services provided in the exercise of governmental authority such as law enforcement, correctional services, income security or insurance, social security or insurance, social welfare, public education, public training, health, and child care.
4. Notwithstanding subparagraph 3(e), if services provided in the exercise of governmental authority are provided in the territory of a Party such as law enforcement, correctional services, income security or insurance, social security or insurance, social welfare, public education, public training, health, and child care on a commercial basis or in competition with one or more service providers, such services shall be covered by the provisions of this Chapter.
5. Nothing in this Chapter shall be construed to impose any obligation on a Party with respect to a national of the other Party seeking access to its employment market, or employed on a permanent basis in its territory, or to confer any right on that national with respect to such access or employment.
Article 11.3. National Treatment
Each Party shall accord to services and service providers of the other Party treatment no less favorable than that it accords, in like circumstances, to its own services and service providers.
Article 11.4. Local Presence
Neither Party may require a service provider of the other Party to establish or maintain a representative office or any form of enterprise, or to be resident, in its territory as a condition for the cross-border provision of a service.
Article 11.5. Reservations
1. Articles 11.3 and 11.4 do not apply to:
(a) any existing non-conforming measure that is maintained by:
(i) a Party at the national level, as set out in its Schedule to Annex I; or
(ii) a local government;
(b) the continuation or prompt renewal of any non-conforming measure referred to in subparagraph (a); or
(c) an amendment to any non-conforming measure referred to in subparagraph (a) to the extent that the amendment does not decrease the conformity of the measure, as it existed immediately before the amendment, with Articles 11.3 and 11.4.
2. Articles 11.3 and 11.4 do not apply to any measure that a Party adopts or maintains with respect to sectors, subsectors or activities, as set out in its Schedule to Annex II.
Article 11.6. Quantitative Restrictions
1. Each Party shall set out in its Schedule to Annex III any quantitative restriction that it maintains at the national level.
2. Each Party shall notify the other Party of any quantitative restriction that it adopts, other than at the local government level, after the date of entry into force of this Agreement and shall set out the restriction in its Schedule to Annex III.
3. The Parties shall periodically, but in any event at least every two years, endeavor to negotiate the liberalization or removal of the quantitative restrictions set out in Annex II pursuant to paragraphs 1 and 2.
Article 11.7. Future Liberalization
1. Through future negotiations, to be scheduled every two years by the Commission after the date of entry into force of this Agreement, the Parties will further deepen liberalization with a view to reaching the reduction or elimination of the remaining restrictions scheduled in conformity with Article 11.5, on a mutually advantageous basis and ensuring an overall balance of rights and obligations.
2. If a Party makes any further liberalization, in conformity with Article 11.5 by an agreement with a non-Party, it shall afford adequate opportunity to the other Party to negotiate treatment granted therein on a mutually advantageous basis and with a view to securing an overall balance of rights and obligations.
Article 11.8. Liberalization of Non-Discriminatory Measures
Each Party shall set out in its Schedule to Annex IV its commitments to liberalize quantitative restrictions, licensing requirements, performance requirements or other non- discriminatory measures.
Article 11.9. Procedures
The Commission shall establish procedures for:
(a) a Party to notify and include in its relevant Schedule:
(i) quantitative restrictions in accordance with Article 11.6.2;
(ii) commitments pursuant to Article 11.8; and
(iii) amendments of measures referred to in Article 11.5.1(c); and
(b) consultations on reservations, quantitative restrictions or commitments with a view to further liberalization.
Article 11.10. Licensing and Certification
1. With a view to ensuring that any measure adopted or maintained by a Party related to requirements and procedures to the licensing or certification of nationals of the other Party does not constitute an unnecessary barrier to cross-border trade in services, each Party shall endeavor to ensure that any such measure:
(a) is based on objective and transparent criteria, such as competence and the ability to
provide a service;
(b) is not more burdensome than necessary to ensure the quality of a service; and
(c) does not constitute a disguised restriction on the cross-border provision of a service.
2. Where a Party recognizes, unilaterally or by an agreement or arrangement, education, experience, licenses or certifications obtained in the territory of a non-Party, the Party shall afford the other Party an adequate opportunity to demonstrate that education, experience, licenses or certifications obtained in the other Party's territory should also be recognized or to conclude an agreement or arrangement of comparable effect.
3. Annex 11.10 applies to measures adopted or maintained by a Party relating to the licensing or certification of professional service providers.
Article 11.11. Denial of Benefits
Subject to prior notification and consultation in accordance with Articles 17.4 and 19.4, a Party may deny the benefits of this Chapter to a service provider of the other Party where the Party establishes that the service is being provided by an enterprise that is owned or controlled by persons of a non-Party and that has no substantive business activities in the territory of the other Party.
Annex 11.10. Professional Services
Objectives
1. The objective of this Annex is the establishment of rules to be followed by the Parties in the reduction and gradual elimination, within their territories of the barriers in the rendering of professional services.
Processing of Applications for Licenses and Certifications
2. Each Party shall ensure that its competent authorities, within a reasonable time after the submission by a national of the other Party of an application for a license or certification:
(a) where the application is complete, make a determination on the application and inform the applicant of that determination; or
(b) where the application is not complete, inform the applicant, without undue delay, of the status of the application and the additional information that is required under the Party's law.
Development of Professional Standards
3. The Parties shall encourage the relevant bodies in their respective territories to develop mutually acceptable standards and criteria for licensing and certification of professional service providers and to provide recommendations on mutual recognition to the Commission.
4. The standards and criteria referred to in paragraph 3 may be developed with regard to the following matters:
(a) education - accreditation of schools or academic programs;
(b) examinations - qualifying examinations for licensing, including alternative methods of assessment such as oral examinations and interviews;
(c) experience - length and nature of experience required for licensing;
(d) conduct and ethics - standards of professional conduct and the nature of disciplinary action for non-conformity with those standards;
(e) professional development and re-certification - continuing education and ongoing requirements to maintain professional certification;
(f) scope of practice - extent of, or limitations on, permissible activities;
(g) local knowledge - requirements for knowledge of such matters as local laws, regulations, language, geography or climate; and