Chile - Hong Kong SAR Investment Agreement (2016) - Electronic Database of Investment Treaties (EDIT)

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Chile - Hong Kong SAR Investment Agreement (2016)

(a) the acquisition or ownership of land and properties in the HKSAR, where the measure does not conform with the obligations imposed by Article 4 (Non-discriminatory Treatment as Compared with a Party's Own Investors);

(b) (i) public law enforcement, ambulance services, correctional services, and fire-fighting and rescue services, and

(ii) health, education, housing, training, transport, public utilities (i.e. supply of water, electricity and gas), social security and social welfare, to the extent that they are social services established for a public purpose,

Where the measure does not conform with the obligations imposed by Article 4 (Non-discriminatory Treatment as Compared with a Party's Own Investors), Article 5 (Non-discriminatory Treatment as Compared with a Non-Party's Investors), Article 8 (Senior Management and Boards of Directors) or Article 9 (Performance Requirements);

(c) the establishment or acquisition in the HKSAR of an investment in services sectors, where the measure does not conform with the obligations imposed by Article 8 (Senior Management and Boards of Directors) or Article 9 (Performance Requirements), provided that the measure is consistent with the HKSAR's obligations under Chapter 11 (Trade in Services) of the FTA.

(d) Any measure maintained or adopted that, at the time of sale or other disposition of the Government of the HKSAR's equity interests in, or the assets of, an existing Government enterprise or an existing governmental entity,

(i) prohibits or imposes limitations on the ownership or control of equity interests or assets, or

(ii) imposes nationality requirements relating to senior management or members of the board of directors,

(e) (i) domestic free television programme services, domestic pay television programme services, non-domestic television programme services, and other licensable television programme services under the Broadcasting Ordinance (Chapter 562 of the Laws of the HKSAR) including any statutory modification or reenactment thereof for the time being in force, and

(ii) broadcasting (i.e. transmitting sound (otherwise than as part of a television broadcast) for general reception by means of radio waves) under Part 3A (Sound Broadcasting Licences) of the Telecommunications Ordinance (Chapter 106 of the Laws of the HKSAR) including any statutory modification or re-enactment thereof for the time being in force,

Schedule of Chile

In accordance with Article 17.2 (Non-Conforming Measures), Chile reserves the right to adopt or maintain any measure that does not conform to the obligations set out below with respect to the following sectors, subsectors or matters:

(a) the ownership or control of land within five kilometres of the coastline that is used for agricultural activities. Such measure could include a requirement that the majority of each class of stock of a Chilean juridical person that seeks to own or control such land be held by Chilean persons or by persons residing in Chile for 183 days or more per year; where the measure does not conform with the obligations imposed by Article 4 (Non-discriminatory Treatment as Compared with a Party's Own Investors), or Article 5 (Non-discriminatory Treatment as Compared with a Non-Party's Investors);

(b) the transfer or disposal of any interest in stock or asset held in an existing state enterprise or governmental entity. Chile reserves the right to prohibit or impose limitations on the ownership of said interest or asset and on the right of foreign investors or their investments to control any State company (13) created thereby or investments made by the same. In connection with any such transfer or disposal, Chile may adopt or maintain any measure related to the nationality of senior management and members of the board of directors; where the measure does not conform with the obligations imposed by Article 4 (Non-discriminatory Treatment as Compared with a Party's Own Investors), or Article 8 (Senior Management and Boards of Directors);

(c) one way satellite broadcasting of digital telecommunication services, whether these involve direct home television broadcasting, direct broadcasting of television services and direct audio broadcasting; supplementary telecommunication services; and limited telecommunication services; where the measure does not conform with the obligations imposed by Article 4 (Non-discriminatory Treatment as Compared with a Party's Own Investors), Article 5 (Non-discriminatory Treatment as Compared with a Non-Party's Investors), Article 8 (Senior Management and Boards of Directors), or Article 9 (Performance Requirements);

(d) according rights or preferences to socially or economically disadvantaged minorities; where the measure does not conform with the obligations imposed by Article 4 (Non-discriminatory Treatment as Compared with a Party's Own Investors), Article 5 (Non-discriminatory Treatment as Compared with a Non-Party's Investors), Article 8 (Senior Management and Boards of Directors), or Article 9 (Performance Requirements);

(e) according rights or preferences to indigenous peoples; where the measure does not conform with the obligations imposed by Article 4 (Non-discriminatory Treatment as Compared with a Party's Own Investors), Article 5 (Non-discriminatory Treatment as Compared with a Non-Party's Investors), Article 8 (Senior Management and Boards of Directors), or Article 9 (Performance Requirements);

(f) education (14); where the measure does not conform with the obligations imposed by Article 4 (Non-discriminatory Treatment as Compared with a Party's Own Investors), Article 5 (Non-discriminatory Treatment as Compared with a Non-Party's Investors), Article 8 (Senior Management and Boards of Directors), or Article 9 (Performance Requirements);

(g) activities of foreign fishing, including fish landing, first landing of fish processed at sea and access to Chilean ports (port privileges), the use of beaches, land adjacent to beaches (terrenos de playas), water-columns (porciones de agua) and sea-bed lots (fondos marinos) for the issuance of maritime concessions (15); where the measure does not conform with the obligations imposed by Article 4 (Non-discriminatory Treatment as Compared with a Party's Own Investors), or Article 5 (Non-discriminatory Treatment as Compared with a Non-Party's Investors);

(h) according differential treatment to non-Parties, under any existing or future bilateral or multilateral international agreement, with respect to arts and cultural industries (16), such as audio-visual cooperation agreements; where the measure does not conform with the obligations imposed by Article 5 (Non-discriminatory Treatment as Compared with a Non-Party's Investors);

(i) the organisation and presentation in Chile of concerts and musical performances; the distribution or display of movies or videos; and radio broadcasts aimed at the public in general, as well as all radio, television and cable television-related activities, satellite programming services and broadcasting networks; where the measure does not conform with the obligations imposed by Article 4 (Non-discriminatory Treatment as Compared with a Party's Own Investors), Article 5 (Non-discriminatory Treatment as Compared with a Non-Party's Investors), or Article 9 (Performance Requirements) (17);

(j) the supply of public law enforcement and correctional services, and the following services to the extent that they are social services established or maintained for reasons of public interest: income security or insurance, social security or insurance, social welfare, public education, public training, health care and child care; where the measure does not conform with the obligations imposed by Article 4 (Non-discriminatory Treatment as Compared with a Party's Own Investors), Article 5 (Non-discriminatory Treatment as Compared with a Non-Party's Investors), Article 8 (Senior Management and Boards of Directors), or Article 9 (Performance Requirements);

(k) the international land transportation of cargo or passengers in border areas and for the international land transportation from Chile, where the measure does not conform with the obligations imposed by Article 4 (Non-discriminatory Treatment as Compared with a Party's Own Investors), or Article 5 (Non-discriminatory Treatment as Compared with a Non-Party's Investors); and

(l) the establishment or acquisition in Chile of an investment in services sectors, where the measure does not conform with the obligations imposed by Article 8 (Senior Management and Boards of Directors) or Article 9 (Performance Requirements), provided that the measure is consistent with Chile's obligations under Chapter 11 (Trade in Services) of the FTA.

(13) A "State company" shall mean any company owned or controlled by Chile by means of an interest share in the ownership thereof, and it shall include any company created after the entry into force of this Agreement for the sole purpose of selling or disposing of its interest share in the capital or assets of an existing state enterprise or governmental entity.

(14) This reservation does not apply to investors and an investment of an investor of the HKSAR in kindergarten, pre-school, elementary or secondary private education institutions, that do not receive public resources, or to the supply of services related to second-language training, corporate, business, and industrial training and skill upgrading, which include consulting services relating to technical support, advice, curriculum, and programme development in education.

(15) For greater certainty, "maritime concessions" do not cover aquaculture.

(16) For the purposes of this reservation, "arts and cultural industries" includes: (a) books, magazines, periodical publications, or printed or electronic newspapers, excluding the printing and typesetting of any of the foregoing; (b) recordings of movies or videos; (c) music recordings in audio or video format; (d) printed music scores or scores readable by machines; (e) visual arts, artistic photography and new media; (f) performing arts, including theatre, dance and circus arts; and (g) media services or multimedia. For greater certainty, government supported subsidy programmes for the promotion of cultural activities are not subject to the limitations or obligations of this Agreement.

(17) Notwithstanding this reservation, Chile shall extend to the persons and investors of the HKSAR, and their investments, treatment no less favourable than that the HKSAR accords persons and investors of Chile, and their investments.

Annex III. Exceptions from Non-discriminatory Treatment as Compared with a Non-Party’s Investors

1. Article 5 (Non-discriminatory Treatment as Compared with a Non-Party's Investors) shall not apply to treatment accorded by a Party under any bilateral or multilateral agreements in force or signed prior to the date of entry into force of this Agreement.

2. Article 5 (Non-discriminatory Treatment as Compared with a Non-Party's Investors) shall not apply to treatment accorded by a Party under any bilateral or multilateral agreements or arrangements:

(a) establishing, strengthening or expanding a free trade area, a customs union, a common market, an economic union or a similar institution; or

(b) relating to:

(i) aviation;

(ii) fisheries; or

(iii) maritime matters, including salvage.

Annex IV. Transfers - Chile

1. 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 Organica Constitucional del Banco Central de Chile) 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).

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.

3. When applying measures under this Annex, Chile, as established in its legislation, shall not discriminate between the HKSAR and any non-Party with respect to transactions of the same nature.

Annex V. Voluntary Investment Programmes – Chile

1. The obligations and commitments contained in this Agreement do not apply to Decree Law 600, Foreign Investment Statute (Decreto Ley 600, Estatuto de la Inversion Extranjera) or its successors (hereinafter referred to in this Annex as "DL 600"), and to Law 18.657, Foreign Capital Investment Fund Law (Ley 18.657, Ley de Fondos de Inversion de CapitalExtranjero), with respect to:

(a) The right of the Foreign Investment Committee of Chile (Comite de Inversiones Extranjeras) or its successor to accept or reject applications to invest through an investment contract under DL 600 18 and the right to regulate the terms and conditions of foreign investment under DL 600 and Law 18.657.

(b) The right 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 the HKSAR or from the partial or complete liquidation of the investment which may not take place until a period not to exceed:

(i) in the case of an investment made pursuant to DL 600, one year from the date of transfer to Chile; or

(ii) in the case of an investment made pursuant to Law 18.657 19, five years from the date of transfers to Chile.

(c) The right to adopt measures, consistent with this Annex, establishing future special voluntary investment programmes 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 the HKSAR 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.

2. For greater certainty, except to the extent that paragraph 1(b) or 1(c) provides an exception to Article 11 (Transfers), the investment entered through an investment contract under DL 600, through Law 18.657 or through any future special voluntary investment programme, will be subject to the obligations and commitments of this Agreement, to the extent that the investment is a covered investment.

(18) The authorisation and execution of an investment contract under DL 600 by an investor of a Party or a covered investment does not create any right on the part of the investor or the covered investment to engage in particular activities in Chile.

(19) Law 18.657 was derogated on May 1, 2014, by law 20.712. The transfer requirement established under subparagraph (b) (ii) will only be applicable to investments made pursuant to Law 18.657 prior to May 1, 2014 and not to investments made pursuant to Law 20.712.