(c) the monetary assessment period, including any extension, has lapsed and the responding Party has not yet eliminated the non-conformity or the nullification or impairment.
13. If the responding Party notified the complaining Party that it wished to discuss the possible use of a fund and the Parties do not agree on the use of a fund within three months of the date of the responding Party's notice under paragraph 7, and this time period has not been extended by agreement of the Parties, the responding Party may elect to make the monetary assessment payment equal to 50 per cent of the amount determined under paragraph 5 or the level proposed by the complaining Party under paragraph 3 if there has been no determination under paragraph 5. If this election is made, the payment must be made within nine months of the responding Party's notice under paragraph 7 in U.S. dollars, or in an equivalent amount of the currency of the responding Party or in another currency agreed to by the Parties. If the election is not made, the complaining Party may suspend the application of benefits in the amount determined under paragraph 5, or the level proposed by the complaining Party under paragraph 3 if there has been no determination under paragraph 5, at the end of the election period.
14. The complaining Party shall accord sympathetic consideration to the notice provided by the responding Party regarding the possible use of the fund referred to in paragraphs 8 and 13.
15. Compensation, suspension of benefits and the payment of a monetary assessment shall be temporary measures. None of these measures is preferred to full implementation through elimination of the non-conformity or the nullification or impairment. Compensation, suspension of benefits and the payment of a monetary assessment shall only be applied until the responding Party has eliminated the non-conformity or the nullification or impairment, or until a mutually satisfactory solution is reached.
Article 27.19. Compliance Review
1. Without prejudice to the procedures in Article 27.18, if a responding Party considers that it has eliminated the non-conformity or the nullification or impairment found by the panel, it may refer the matter to the panel by providing a written notice to the complaining Party. The panel shall issue its report on the matter no later than 90 days after the responding Party provides written notice.
2. Ifthe panel determines that the responding Party has eliminated the non-conformity or the nullification or impairment, the complaining Party shall promptly reinstate any benefits suspended under Article 27.18.
Section B. Domestic Proceedings and Private Commercial Dispute Settlement
Article 27.20. Private Rights
No Party shall provide for a right of action under its law against the other Party on the ground that a measure of the other Party is inconsistent with its obligations under this Agreement, or that the other Party has otherwise failed to carry out its obligations under this Agreement.
Article 27.21. Alternative Dispute Resolution
1. Each Party shall, to the maximum extent possible, encourage and facilitate the use of arbitration and other means of alternative dispute resolution for the settlement of international commercial disputes between private parties in the free trade area.
2. To this end, each Party shall provide appropriate procedures to ensure observance of agreements to arbitrate and for the recognition and enforcement of arbitral awards in such disputes.
3. A Party shall be deemed to be in compliance with paragraph 2 if it is in compliance with the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York on 10 June, 1958.
Chapter 28. Exceptions and General Provisions
Section A. Exceptions
Article 28.1. General Exceptions
1. For the purposes of Chapter 2 (National Treatment and Market Access for Goods), Chapter 3 (Rules of Origin and Origin Procedures), Chapter 4 (Customs Administration and Trade Facilitation), Chapter 6 (Sanitary and Phytosanitary Measures), Chapter 7 (Technical Barriers to Trade) and Chapter 16 (State-Owned Enterprises and Designated Monopolies), Article XX of GATT 1994 and its interpretative notes are incorporated into and made part of this Agreement, mutatis mutandis. (1)
2. The Parties understand that the measures referred to in Article XX(b) of GATT 1994 include environmental measures necessary to protect human, animal or plant life or health, and that Article XX(g) of GATT 1994 applies to measures relating to the conservation of living and non-living exhaustible natural resources.
3. For the purposes of Chapter 9 (Cross-Border Trade in Services), Chapter 11 (Temporary Entry for Business Persons), Chapter 12 (Telecommunications), Chapter 13 (Electronic Commerce) (2) and Chapter 16 (State-Owned Enterprises and Designated Monopolies), paragraphs (a), (b) and (c) of Article XIV of GATS are incorporated into and made part of this Agreement, mutatis mutandis. (3) The Parties understand that the measures referred to in Article XIV(b) of GATS include environmental measures necessary to protect human, animal or plant life or health.
4. Nothing in this Agreement shall be construed to prevent a Party from taking action, including maintaining or increasing a customs duty, that is authorised by the Dispute Settlement Body of the WTO or is taken as a result of a decision by a dispute settlement panel under a free trade agreement to which both Parties are party.
Article 28.2. Security Exceptions
Nothing in this Agreement shall be construed to:
(a) require a Party to furnish or allow access to any information the disclosure of which it determines to be contrary to its essential security interests; or
(b) preclude a Party from applying measures that it considers necessary for the fulfilment of its obligations with respect to the maintenance or restoration of international peace or security, or the protection of its own essential security interests.
Article 28.3. Temporary Safeguard Measures
1. A Party may adopt or maintain restrictive measures with regard to cross-border capital transactions as well as payments or transfers for current account and capital movement transactions:
(a) in the event of serious balance-of-payments and external financial difficulties or threat thereof; or
(b) in exceptional cases where movements of capital cause or threaten to cause serious difficulties for macroeconomic management.
2. Restrictive measures referred to in paragraph 1 shall:
(a) not be inconsistent with Article 8.4 (National Treatment), Article 8.5 (Most-Favoured-Nation Treatment), Article 9.3 (National Treatment), Article 9.4 (Most-Favoured-Nation Treatment), Article 10.3 (National Treatment) and Article 10.4 (Most-Favoured-Nation Treatment); (4)
(b) be consistent with the Articles of Agreement of the International Monetary Fund;
(c) not exceed those necessary to deal with the circumstances set out in paragraph 1;
(d) be temporary and be phased out progressively as the situation specified in paragraph 1 improves;
(e) be promptly notified to the other Party; and
(f) avoid unnecessary damages to the commercial, economic and financial interests of the other Party.
3. The Party which has adopted any measures under paragraph 1 shall, on request, commence consultations with the other Party in order to review the restrictions adopted by it.
Article 28.4. Taxation Measures
1. For the purposes of this Article:
designated authorities means:
(a) for Australia, the Secretary to the Treasury, or its successor, or an authorised representative of the Secretary; and
(b) for Peru, the General Director of International Economy, Competition and Productivity Affairs (Director General de Asuntos de Economia Internacional, Competencia y Productividad del Ministerio de Economia y Finanzas), ot its successor;
tax convention means a convention for the avoidance of double taxation or other international taxation agreement or arrangement; and
taxes and taxation measures include excise duties, but do not include any import or customs duties.
2. Except as provided in this Article, nothing in this Agreement shall apply to taxation measures.
3. This Agreement shall only grant rights or impose obligations with respect to taxation measures where:
(a) corresponding rights and obligations are also granted or imposed under the WTO Agreement; or
(b) they are granted or imposed under:
(i) Chapter 2 (National Treatment and Market Access for Goods); or
(ii) Article 8.10 (Performance Requirements).
4. Notwithstanding paragraph 3, nothing in the Articles referred to in that paragraph shall apply to:
(a) any non-conforming provision of any existing taxation measure;
(b) the continuation or prompt renewal of any non-conforming provision of any existing taxation measure;
(c) an amendment to any non-conforming provision of any existing taxation measure, provided that the amendment does not decrease the conformity of the measure, as it existed immediately before the amendment, with any of those Articles;
(d) the adoption or enforcement of any new taxation measure aimed at ensuring the equitable or effective imposition or collection of taxes including any taxation measure that differentiates between persons based on their place of residence, provided that the taxation measure does not arbitrarily discriminate between persons, goods or services of the Parties (5); or
(e) a provision that conditions the receipt, or continued receipt, of an advantage relating to the contributions to, or income of, a pension trust, pension fund, superannuation fund, or other arrangement to provide pension, superannuation, or similar benefits on a requirement that the Party maintain continuous jurisdiction, regulation, or supervision over such trust, fund, or other arrangement.
5. Article 8.8 (Expropriation and Compensation) shall apply to taxation measures. However, no investor may invoke Article 8.8 (Expropriation and Compensation) as the basis for a claim if it has been determined pursuant to this paragraph that the measure is not an expropriation. An investor that seeks to invoke Article 8.8 (Expropriation and Compensation) with respect to a taxation measure must first refer to the designated authorities of the Party of the investor and the respondent Party, at the time that it gives its notice of intent under Article 8.20 (Submission of a Claim to Arbitration), the issue of whether that taxation measure is not an expropriation. If the designated authorities do not agree to consider the issue or, having agreed to consider it, fail to agree that the measure is not an expropriation within a period of six months of the referral, the investor may submit its claim to arbitration under Article 8.20 (Submission of a Claim to Arbitration). A panel established to consider a dispute related to the measure shall accept as binding a determination of the designated authorities of the Parties made under this paragraph.
6. Nothing in this Agreement shall affect the rights and obligations of either Party under any tax convention. In the event of any inconsistency relating to a taxation measure between this Agreement and any such tax convention, that convention shall prevail to the extent of the inconsistency.
7. If an issue arises as to whether any inconsistency exists between this Agreement and a tax convention between the Parties, the issue shall be referred to the designated authorities of the Parties. The designated authorities of the Parties shall have six months from the date of referral of the issue to make a determination as to the existence and extent of the inconsistency. If the designated authorities agree, such a period may be extended up to twelve months from the date of referral of the issue. No procedure concerning the measure giving rise to the issue may be initiated under Chapter 27 (Dispute Settlement) or Chapter 8 (Investment) until the expiry of the six month period, or such other period as may have been agreed by the designated authorities pursuant to the previous sentence. A panel established to consider a dispute related to a taxation measure shall accept as binding a determination of the designated authorities of the Parties made under this paragraph.
8. Nothing in this Agreement shall oblige a Party to extend to the other Party the benefit of any treatment, preference or privilege arising from any tax convention by which the Party is bound.
Section B. General Provisions
Article 28.5. Disclosure of Information
Nothing in this Agreement shall be construed to require a Party to furnish or allow access to information, the disclosure of which would be contrary to its law or would impede law enforcement, or otherwise be contrary to the public interest, or which would prejudice the legitimate commercial interests of particular enterprises, public or private.
Chapter 29. Final Provisions
Article 29.1. Annexes, Appendices and Footnotes
The Annexes, Appendices and footnotes to this Agreement shall constitute an integral part of this Agreement.
Article 29.2. Amendments
The Parties may agree, in writing, to amend this Agreement. When so agreed and approved in accordance with the applicable legal procedures of each Party, an amendment shall enter into force 60 days after the date on which the Parties exchange written notification certifying that such procedures have been completed, or on such other date after the aforementioned exchange of notifications as the Parties may agree.
Article 29.3. Amendment of the Wto Agreement
In the event of an amendment of the WTO Agreement that amends a provision that the Parties have incorporated into this Agreement, the Parties shall, unless otherwise provided for in this Agreement, consult on whether to amend this Agreement.
Article 29.4. Entry Into Force
This Agreement shall enter into force 60 days after the date on which the Parties exchange written notifications certifying that they have completed their respective applicable legal procedures or on such other date after the aforementioned exchange of notifications as the Parties may agree.
Article 29.5. Termination
Either Party may terminate this Agreement by written notification to the other Party. This Agreement shall terminate six months after the date of such notification, or on such other date as the Parties may agree.
Article 29.6. Authentic Texts
The English and Spanish texts of this Agreement are equally authentic.
Conclusion
IN WITNESS WHEREOF, the undersigned, being duly authorised by their respective Governments, have signed this Agreement.
DONE, at Canberra, this twelfth day of February, two thousand and eighteen, in duplicate, in the English and Spanish languages.
FOR AUSTRALIA
FOR THE REPUBLIC OF PERU
ANNEX I. Explanatory notes
1. The Schedule of a Party to this Annex sets out, pursuant to Article 8.12 (Non-Conforming Measures) and Article 9.7 (Non-Conforming Measures), a Party's existing measures that are not subject to some or all of the obligations imposed by:
(a) Article 8.4 (National Treatment) or Article 9.3 (National Treatment);
(b) Article 8.5 (Most-Favoured-Nation Treatment) or Article 9.4 (Most-Favoured-Nation Treatment);
(c) Article 8.10 (Performance Requirements);
(d) Article 8.11 (Senior Management and Boards of Directors);
(e) Article 9.5 (Market Access); or
(f) Article 9.6 (Local Presence).
2. Each Schedule entry sets out the following elements:
(a) sector refers to the sector for which the entry is made;
(b) sub-sector, where referenced, refers to the specific subsector for which the entry is made;
(c) obligations concerned specifies the obligations referred to in paragraph 1 that, pursuant to Article 8.12.1(a) (Non-Conforming Measures) and Article 9.7.1(a) (Non-Conforming Measures), do not apply to the listed measure(s) as indicated in the introductory note for each Party's Schedule;
(d) level of government indicates the level of government maintaining the listed measures;
(e) measures identifies the laws, regulations or other measures for which the entry is made. A measure cited in the measures element:
(i) means the measure as amended, continued or renewed as of the date of entry into force of this Agreement; and
(ii) includes any subordinate measure adopted or maintained under the authority of and consistent with the measure; and
(f) description, as indicated in the introductory note for each Party's Schedule, either sets out the non-conforming measure or provides a general non-binding description of the measure for which the entry is made.
3. Article 9.6 (Local Presence) and Article 9.3 (National Treatment) are separate disciplines and a measure that is only inconsistent with Article 9.6 (Local Presence) need not be reserved against Article 9.3 (National Treatment).
ANNEX I. Schedule of australia
INTRODUCTORY NOTES
1. Description sets out the non-conforming measure for which the entry is made.
2. In accordance with Article 8.12.1 (Non-Conforming Measures) and Article 9.7.1 (Non-Conforming Measures), the articles of this Agreement specified in the Obligations Concerned element of an entry do not apply to the non-conforming measures identified in the Description element of that entry.
3. For greater certainty, the Description element of each of Australia's entries in Annex I is to be interpreted in accordance with the relevant cited sources of the non- conforming measures.
Sector: All
Obligations Concerned: National Treatment (Article 8.4 and Article 9.3)Most-Favoured-Nation Treatment (Article 8.5 and Article 9.4)Performance Requirements (Article 8.10)Senior Management and Boards of Directors (Article 8.11)Local Presence (Article 9.6)
Level of Government: Regional
Measures: All existing non-conforming measures at the regional level of government.
Description: Investment and Cross-Border Trade in Services
All existing non-conforming measures at the regional level of government.
Sector: All
Obligations Concerned: National Treatment (Article 8.4)Senior Management and Boards of Directors (Article 8.11)
Level of Government: Central
Measures: Australia's Foreign Investment Framework, which comprises Australia's Foreign Investment Policy, the Foreign Acquisitions and Takeovers Act 1975 (Cth); Foreign Acquisitions and Takeovers Regulation 2015 (Cth); Foreign Acquisitions and Takeovers Fees Imposition Act 2015 (Cth); Foreign Acquisitions and Takeovers Fees Imposition Regulation 2015 (Cth); Financial Sector (Shareholdings) Act 1998 (Cth); andMinisterial Statements.
Description:
Investment (1)
- The following investments (2) are subject to approval by the Australian Government and may also require notification (3) to the Australian Government:a proposed investment by a foreign person (4) in an entity or Australian business valued above $A1,134 million* ;a proposed investment by a foreign person in an entity or Australian business valued above $A261 million* relating to a sensitive business (5) or its assets;a proposed direct investment by a foreign government investor (6) of any interest regardless of value;a proposed investment by a foreign person of 5 per cent or more in the media sector, regardless of the value of the investment;a proposed acquisition by a foreign person of an interest in developed commercial land (7) where the value of the interest is more than $A1,134 millionĂ¢Â€ , unless the land meets the conditions for the lower developed commercial land threshold of $A57 million* (8).
- a proposed investment by a foreign person4 in an entity or Australian business valued above $A1,134 million *;
- a proposed investment by a foreign person in an entity or Australian business valued above $A261 million* relating to a sensitive business (5) or its assets;
- a proposed direct investment by a foreign government investor (6)of any interest regardless of value;
- a proposed investment by a foreign person of 5 per cent or more in the media sector, regardless of the value of the investment;
- a proposed acquisition by a foreign person of an interest in developed commercial land (7) where the value of the interest is more than $A1,134 million* , unless the land meets the conditions for the lower developed commercial land threshold of $A57 million* (8)
Investments may be refused, subject to orders, and/or approved subject to conditions. Foreign persons that do not comply with the foreign investment framework may be subject to civil and criminal penalties.
For greater certainty, where an investment could qualify for the application of one or more of the above screening thresholds, approval and/or notification requirements apply from the lowest applicable threshold.
Separate or additional requirements may apply to measures subject to other Annex I reservations and to sectors, sub-sectors or activities subject to Annex II
2. The acquisition of a stake in an existing financial sector company by a foreign investor, or entry into an arrangement by a foreign investor, that would lead to an unacceptable shareholding situation or to practical control (9) of an existing financial sector company, may be refused, or be subject to certain conditions (10).
Sector: Professional Services
Obligations Concerned: National Treatment (Article 9.3)Most-Favoured-Nation Treatment (Article 9.4)
Level of Government: Central
Measures: Patents Act 1990 (Cth)Patents Regulations 1991 (Cth)
Description: Cross-Border Trade in Services
In order to register to practise in Australia, patent attorneys must have been employed for at least two continuous years, or a total of two years within five continuous years, in Australia or New Zealand, or in both countries, in a position or positions that provided the applicant with required experience in Australia's and New Zealand's patent attorney regime.
Sector: Professional Services
Obligations Concerned: National Treatment (Article 9.3)Most-Favoured-Nation Treatment (Article 9.4)
Level of Government: Central
Measures: Migration Act 1958 (Cth)
Description: Cross-Border Trade in Services
To practise as a migration agent in Australia a person must be an Australian citizen or permanent resident or a citizen of New Zealand with a special category visa.
Sector: Professional Services
Obligations Concerned: Local Presence (Article 9.6)
Level of Government: Central
Measures: Corporations Act 2001 (Cth)
Description: Cross-Border Trade in Services
A person who is not ordinarily resident in Australia may be refused registration as a company auditor or liquidator. At least one partner in a firm providing auditing services must be a registered company auditor who is ordinarily resident in Australia.
Sector: Professional Services
Obligations Concerned: Local Presence (Article 9.6)
Level of Government: Central
Measures: Customs Act 1901 (Cth)
Description: Cross-Border Trade in Services