Where the claim is based on loss or damage to an interest in an enterprise of the other Party that is a juridical person that the investor owns or controls directly or indirectly, either Form 1 or 2 must be accompanied by Form 3.
Claims made under Article 820 must be accompanied by either Form 1, where the investor is a national of a Party, or Form 2, where the investor is a Party, a state enterprise thereof, or an enterprise of such Party, and Form 4.
Form 1
Consent and waiver for an investor bringing a claim under Article 819 or Article 820 (where the investor is a national of a Party) of the Free Trade Agreementbetween Canada and the Republic of Colombia done on (date of signature):
I, (Name of investor) , consent to arbitration in accordance with the procedures set out in this Agreement, and waive my right to initiate or continue before any administrative tribunal or court under the law of either Party to the Agreement, or other dispute settlement procedures, any proceedings with respect to the measure of (Name of disputing Party) that is alleged to be a breach referred to in Article 819, except for proceedings for injunctive, declaratory or other extraordinary relief, not involving the payment of damages, before an administrative tribunal or court under the law of (Name of disputing Party).(To be signed and dated)
Form 2
Consent and waiver for an investor bringing a claim under Article 819 or Article 820 (where the investor is a Party, a state enterprise thereof, or an enterprise of such Party) of the Free Trade Agreement between Canada and the Republic of Colombia done on (date of signature):
I, (Name of declarant) , on behalf of (Name of investor), consent to arbitration in accordance with the procedures set out in this Agreement, and waive the right of (Name of investor) to initiate or continue before any administrative tribunal or court under the law of either Party to the Agreement, or other dispute settlement procedures, any proceedings with respect to the measure of (Name of disputing Party) that is alleged to be a breach referred to in Article 819 or Article 820, except for proceedings for injunctive, declaratory or other extraordinary relief, not involving the payment of damages before an administrative tribunal or court under the law of (Name of disputing Party) . I hereby solemnly declare that I am duly authorised to execute this consent and waiver on behalf of (Name of investor) .(To be signed and dated)
Form 3
Waiver of an enterprise that is the subject of a claim by an investor under Article 819 of the Free Trade Agreement between Canada and the Republic of Colombia done on (date of signature):
I, (Name of declarant) , waive the right of (Name of the enterprise) to initiate or continue before any administrative tribunal or court under the law of either Party to this Agreement, or other dispute settlement procedures, any proceedings with respect to the measure of (Name of disputing Party) that is alleged by (Name of investor) to be a breach referred to in Article 819, except for proceedings for injunctive, declaratory or other extraordinary relief, not involving the payment of damages, before an administrative tribunal or court under the law of (Name of disputing Party) . I hereby solemnly declare that I am duly authorised to execute this waiver on behalf of (Name of the enterprise) .(To be signed and dated)
Form 4
Consent and waiver of an enterprise that is the subject of a claim by an investor under Article 820 of the Free Trade Agreement between Canada and the Republic of Colombia done on (date of signature):
I, (Name of declarant) , on behalf of (Name of enterprise) , consent to arbitration in accordance with the procedures set out in this Agreement, and waive the right of (Name of enterprise) to initiate or continue before any administrative tribunal or court under the law of either Party to the Agreement, or other dispute settlement procedures, any proceedings with respect to the measure of (Name of disputing Party) that is alleged by (Name of investor) to be a breach referred to in Article 820, except for proceedings for injunctive, declaratory or other extraordinary relief, not involving the payment of damages before an administrative tribunal or court under the law of (Name of disputing Party) . I hereby solemnly declare that I am duly authorised to execute this consent and waiver on behalf of (Name of the enterprise) .(To be signed and dated)
Annex 822. Submission of a Claim to Arbitration
1. An investor of Canada may not submit to arbitration under Section B a claim that Colombia has breached an obligation under Section A either:
(a) on its own behalf under paragraph 1 of Article 819; or
(b) on behalf of an enterprise of Colombia that is a juridical person that the investor owns or controls directly or indirectly under paragraph 1 of Article 820,
if the investor or the enterprise, respectively, has alleged the breach of the obligation under Section A in proceedings before a court or administrative tribunal of Colombia, or to any other binding dispute settlement proceeding agreed by the disputing parties.
2. For greater certainty, if an investor of Canada elects to submit a claim of the type described in paragraph 1 to a court or administrative tribunal of Colombia, or to any other binding dispute settlement proceeding agreed by the disputing parties, that election shall be definitive, and the investor may not thereafter submit the claim to arbitration under Section B.
3. The forms in Annex 821 that require an investor to waive the right to continue certain proceedings, do not refer to investors that have elected to submit a claim referred to in paragraph 1, and shall not be construed to allow such investors to circumvent paragraphs 1 and 2 and to bring a claim to arbitration under Section B.
4. Paragraphs 1 and 2 do not apply to an investor of Canada exhausting administrative recourse under Colombian law.
Annex 831. Submissions by Non-Disputing Parties
1. The application for leave to file a non-disputing party submission shall:
(a) be made in writing, dated and signed by the applicant, and include the applicant’s address and other contact details;
(b) be no longer than five typed pages;
(c) describe the applicant, including, where relevant, its membership and legal status (e.g., company, trade association or other non-governmental organization), its general objectives, the nature of its activities, and any parent organization (including any organization that directly or indirectly controls the applicant);
(d) disclose whether the applicant has any affiliation, direct or indirect, with any disputing party;
(e) identify any government, person or organization that has provided any financial or other assistance in preparing the submission;
(f) demonstrate that the applicant has a significant interest and specify the nature of this interest in the arbitration;
(g) identify the specific issues of fact or law in the arbitration that the applicant will address in its written submission;
(h) explain why the Tribunal should accept the submission; and
(i) be made in a language of the arbitration.
2. The submission filed by a non-disputing party shall:
(a) be dated and signed by the person filing the submission;
(b) be concise, and in no case longer than 20 typed pages, including any appendices;
(c) set out a precise statement supporting the applicant’s position on the issues; and
(d) only address matters within the scope of the dispute.
Annex 837. Exclusions from Dispute Settlement
1. A decision by Canada following a review under the Investment Canada Act (1985, c.28, 1st supp.), with respect to whether or not to permit an acquisition that is subject to review, shall not be subject to the dispute settlement provisions of Section B of this Chapter or of Chapter Twenty-One (Dispute Settlement).
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 its investment, pursuant to Article 2202 (Exceptions -National Security) shall not be subject to the dispute settlement provisions of Section B of this Chapter or of Chapter Twenty-One (Dispute Settlement).
3. Article 815 shall not be subject to the dispute settlement provisions of Section B of this Chapter or of Chapter Twenty-One (Dispute Settlement).
Chapter Nine. Cross-border Trade In Services
Article 901. Scope and Coverage
1. This Chapter applies to measures adopted or maintained by a Party affecting cross-border trade in services by service suppliers of the other Party, including measures affecting:
(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, transport or telecommunications networks and services in connection with the supply of a service;
(d) the presence in its territory of a service supplier 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. This Chapter does not apply to:
(a) financial services as defined in Chapter Eleven (Financial Services);
(b) air services (1) and related services in support of air services, other than:
(i) aircraft repair and maintenance services,
(ii) the selling and marketing of air transport services, and
(iii) computer reservation system ("CRS") services;
(c) procurement by a Party or a state enterprise; and
(d) subsidies or grants provided by a Party, including government-supported loans, guarantees and insurance.
3. This Chapter does not 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 and does not confer any right on that national with respect to that access or employment.
Article 902. National Treatment
1. Each Party shall accord to service suppliers of the other Party treatment no less favourable than that it accords, in like circumstances, to its own service suppliers.
2. The treatment accorded by a Party under paragraph 1 means, with respect to measures adopted or maintained by a sub-national government, treatment no less favourable than the most favourable treatment accorded, in like circumstances, by that sub-national government to service suppliers of the Party of which it forms a part.
Article 903. Most-favoured-nation Treatment
Each Party shall accord to service suppliers of the other Party treatment no less favourable than that it accords, in like circumstances, to service suppliers of a non-Party.
Article 904. Market Access
Neither Party may adopt or maintain measures that:
(a) impose limitations on:
(i) the number of service suppliers, whether in the form of numerical quotas, monopolies, exclusive service suppliers, or the requirement of an economic needs test,
(ii) the total value of service transactions or assets in the form of numerical quotas or the requirement of an economic needs test,
(iii) the total number of service operations or the total quantity of services output expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test, (2) or
(iv) 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 the requirement of an economic needs test; or
(b) restrict or require specific types of legal entity or joint venture through which a service supplier may supply a service.
Article 905. Local Presence
Neither Party may require a service supplier 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 906. Non-conforming Measures
1. Articles 902, 903, 904 and 905 do not apply to:
(a) any existing non-conforming measure that is maintained by a Party at the level of:
(i) national government, as set out by that Party in its Schedule to Annex I,
(ii) provincial or territorial government, as set out by that Party in its Schedule to Annex I, or
(iii) 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 902, 903, 904 and 905.
2. Articles 902, 903, 904 and 905 do not apply to measures that a Party adopts or maintains with respect to sectors, sub-sectors or activities, as set out in its Schedule to Annex II.
Article 907. Domestic Regulation
1. The Parties note their mutual obligations related to domestic regulation in Article VI:4 of the GATS and affirm their commitment respecting the development of any necessary disciplines pursuant to Article VI:4. To the extent that any such disciplines are adopted by the WTO Members, the Parties shall, as appropriate, review them jointly with a view to determining whether this Article should be supplemented.
2. Where authorisation by a Party is required for the supply of a service, the competent authorities of that Party shall, within a reasonable period of time after the submission of an application that 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.
Article 908. Recognition
1. For the purposes of fulfillment, in whole or in part, of its standards or criteria for the authorization, licensing or certification of services suppliers, and subject to the requirements of paragraph 4, a Party may recognize the education or experience obtained, requirements met, or licenses or certifications granted in a particular country. Such recognition, which may be achieved through harmonization or otherwise, may be based on an agreement or arrangement with the country concerned or may be accorded autonomously.
2. A Party that is a party to an agreement or arrangement of the type referred to in paragraph 1, whether existing or future, shall afford, if the other Party is interested, adequate opportunity for the other Party to negotiate accession to such an agreement or arrangement or to negotiate a comparable agreement or arrangement. Where a Party accords recognition autonomously, it shall afford adequate opportunity for the other Party to demonstrate that the education, experience, licences or certifications obtained or requirements met in that other Party's territory should be recognized.
3. No Party may accord recognition in a manner that would constitute a means of discrimination in the application of its standards or criteria for the authorization, licensing or certification of services suppliers, or a disguised restriction on trade in services. Where a Party recognizes, autonomously or by agreement or arrangement, the education or experience obtained, requirements met, or licenses or certifications granted in the territory of a non-Party, nothing in Article 903 shall be construed to require the Party to accord such recognition to the education or experience obtained, requirements met, or licenses or certifications granted in the territory of the other Party.
4. The Parties shall endeavour to ensure that the relevant professional bodies in their respective territories of certain professional service sectors:
(a) exchange information on existing standards and criteria for the authorization, licensing and certification of professional service providers;
(b) meet within 12 months to discuss the development of an agreement or arrangement referred to in paragraph 1;
(c) be guided by Annex 908.4 for the negotiation of such agreements or arrangements; and
(d) provide notification following the conclusion of an agreement or arrangement to the Commission. The professional service sectors to which this paragraph applies shall be determined by the Working Group within six months following the entry into force of this Agreement.
5. On receipt of a notification referred to in subparagraph 4(d), the Commission shall review the agreement or arrangement within a reasonable time to determine whether it is consistent with this Agreement. Based on the Commission's review, each Party shall ensure that its competent authorities, where appropriate, implement the agreement or arrangement within a mutually agreed time.
Article 909. Temporary Licensing
1. Where the Parties agree, each Party shall encourage the relevant professional bodies in its territory to develop procedures for the temporary licensing of professional services suppliers of the other Party.
2. Each Party shall consider establishing a work program to provide for the temporary licensing in its territory of nationals of the other Party who are licensed as engineers in the territory of the other Party. To this end, each Party shall coordinate with the relevant professional bodies of its territory as appropriate.
3. In furtherance of paragraph 2, the Working Group established under Article 912 shall consult with the relevant professional bodies to obtain their recommendations on:
(a) the development of procedures for the temporary licensing of engineers to permit them to practice as engineers in each jurisdiction in each of the Parties' territory;
(b) the development of model procedures for adoption by the competent authorities throughout each of the Parties' territory to facilitate the temporary licensing of engineers; (c) the engineering specialties to which priority should be given in developing temporary licensing procedures; and (d) other matters relating to the temporary licensing of engineers identified by the Working Group.
4. The Working Group shall request that the relevant professional bodies make recommendations on the matters referred to in paragraph 3 within 18 months of the date of their first meeting.
5. The Working Group shall encourage the relevant professional bodies of each Party to meet at the earliest opportunity with a view to cooperating in the development of joint recommendations, within two years following the entry into force of this Agreement, on the matters referred to in paragraph 3. The Working Group shall request an annual report from the relevant professional bodies on the progress achieved in developing recommendations.
6. The Working Group shall promptly review a recommendation made pursuant to paragraphs 4 or 5 to ensure its consistency with this Agreement. If the recommendation is consistent with this Agreement, the Working Group shall encourage the competent authorities of each Party to implement the recommendation within one year.
Article 910. Transfers and Payments
1. Each Party shall permit all transfers and payments relating to the cross-border supply of services to be made freely and without delay into and out of its territory.
2. Each Party shall permit such transfers and payments relating to the cross-border supply of services to be made in a freely usable currency at the market rate of exchange prevailing on the date of transfer.
3. Notwithstanding paragraphs 1 and 2, a Party may prevent or delay a transfer or payment through the equitable, non-discriminatory, and good faith application of its laws relating to:
(a) bankruptcy, insolvency, or the protection of the rights of creditors;
(b) issuing, trading, or dealing in securities, futures, options, or derivatives;
(c) financial reporting or record keeping of transfers when necessary to assist law enforcement or financial regulatory authorities;
(d) criminal or penal offences; or
(e) ensuring compliance with orders or judgments in judicial or administrative proceedings.
Article 911. Denial of Benefits
A Party may deny the benefits of this Chapter to a service supplier of the other Party:
(a) where the Party establishes that the service is being provided by an enterprise owned or controlled by nationals of a non-Party, and the denying Party adopts or maintains measures with respect to the non-Party that prohibit transactions with the enterprise or that would be violated or circumvented if the benefits of this Chapter were accorded to the enterprise;
(b) if the service supplier is an enterprise owned or controlled by persons of a non-Party and the enterprise has no substantial business activities in the territory of the other Party; or
(c) if the service supplier is an enterprise owned or controlled by persons of the denying Party and the enterprise has no substantial business activities in the territory of the other Party.
Article 912. Working Group
1. The Parties shall establish a Working Group at the entry into force of this Agreement comprising representatives of each Party. The representatives of each Party shall be:
For Canada: Director Services Trade Policy Division Department of Foreign Affairs and International Trade
For Colombia: Director Dirección de Inversión Extranjera y Servicios Ministerio de Comercio, Industria y Turismo or their respective successors.
2. The Working Group's functions shall include:
(a) meeting annually, or as otherwise agreed by the representatives, to review matters concerning the implementation and operation of this Chapter and consider issues of interest to the Parties affecting cross-border trade in services;
(b) coordinating enquiries from one Party to the other for information regarding measures that pertain to or may affect cross-border trade in services;
(c) considering the development of procedures to increase the transparency of measures described in Article 906;
(d) reviewing the professional service sectors referred to in paragraph 4 of Article 908; and
(e) monitoring the work and developments of the relevant professional bodies in each Party regarding mutual recognition agreements on authorization, licensing and certification of professional service providers, and providing reports annually or as otherwise agreed to the Commission on initiatives and progress undertaken by the Parties with respect to the implementation of Article 908.
Article 913. Definitions
For purposes of this Chapter:
aircraft repair and maintenance services mean such activities when undertaken on an aircraft or a part thereof while it is withdrawn from service and do not include so-called line maintenance;
computer reservation system ("CRS") services mean services provided by computerised systems that contain information about air carriers' schedules, availability, fares and fare rules, through which reservations can be made or tickets may be issued;
cross-border trade in services or cross-border supply of services means the supply of a service:
(a) from the territory of one Party into the territory of the other Party;
(b) in the territory of one 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 supply of a service in the territory of a Party by a covered investment, as defined in Article 838 (Investment – Definitions);
enterprise means an enterprise as defined in Article 106 (Initial Provisions and General Definitions – Definitions of General Application), and a branch of an enterprise;
enterprise of a Party means an enterprise organized or constituted under the laws of a Party and a branch located in the territory of a Party and carrying out business activities there;
measures adopted or maintained by a Party means measures adopted or maintained by:
(a) national, provincial, territorial or local governments, and authorities; and
(b) non-governmental bodies in the exercise of any regulatory, administrative or other governmental authority delegated by national, provincial, territorial or local governments and authorities;
professional services means services, the supply 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 supplied by trades-persons or vessel and aircraft crew members;
selling and marketing of air transport services mean opportunities for the air carrier concerned to sell and market freely its air transport services including all aspects of marketing such as market research, advertising and distribution. These activities do not include the pricing of air transport services nor the applicable conditions; and
service supplier of a Party means a person of that Party that seeks to supply or supplies a service (4).