record means any medium on which information is recorded or stored.
General Principles
4. Each Party shall ensure that its authorized representatives comply with the procedures set forth in this Annex. The arbitral group shall ensure that all other approved persons comply with these procedures.
5. Each Party shall exercise the utmost restraint in designating information as confidential (7).
Identification of Confidential Information
6. A Party that designates information as confidential information shall identify confidential information by:
(a) clearly marking information recorded in printed records, with the notation "CONFIDENTIAL INFORMATION";
(b) clearly marking information recorded in binary-encoded files with the notation "CONFIDENTIAL INFORMATION" on a label on the record and by clearly annotating the information where it appears in the files with the notation "CONFIDENTIAL INFORMATION"; and
(c) declaring spoken information to be "Confidential Information" prior to its disclosure.
7. Where a Party submits confidential information first submitted by the other Party, it shall identify that information as confidential information by:
(a) clearly marking the information recorded in printed records with the notation "CONFIDENTIAL INFORMATION" and with the name of the Party that first submitted the information;
(b) clearly marking the information recorded in binary-encoded files with the notation "CONFIDENTIAL INFORMATION" on a label on the record and by clearly annotating the information where it appears in the files with the notation "CONFIDENTIAL INFORMATION" and with the name of the Party that first submitted the information; and
(c) prior to its disclosure, declaring spoken information to be "Confidential Information" and identifying the Party that first submitted the information.
Submission of Confidential Information by a Party
8. A Party submitting an exhibit containing confidential information shall submit copies of the exhibit to the arbitral group and to the other Party through its designated office.
9. If a Party objects to the designation of information as confidential information, to the other Party, the arbitral group shall decide if the information meets the definition of confidential information of this Annex. If the arbitral group considers that the information does not meet the definition, the Party submitting the information may:
(a) withdraw the information, in which case the arbitral group and the other Party shall promptly return any record containing the information to the Party submitting it; or
(b) withdraw the designation of the information as confidential information.
10. A Party submitting a document containing confidential information shall also provide, upon request of the other Party and no later than 15 days after the date of the request:
(a) a version of the document edited to remove the confidential information, redacted in such a manner as to convey a reasonable understanding of the substance of the confidential information; or
(b) in exceptional circumstances, a written statement that:
(i) an edited version cannot be made, or
(ii) an edited version would disclose facts that the Party has a proper reason for wishing to keep confidential.
11. If the arbitral group considers that an edited version of a document does not fulfill the requirements of paragraph 10(a) or that exceptional circumstances do not exist to justify a statement pursuant to paragraph 10(b), the arbitral group may decline to consider the confidential information in question. In such a case, the Party submitting the information may:
(a) withdraw the information, in which case the arbitral group and the other Party shall promptly return the document containing the information to the Party submitting it; or
(b) comply with the provisions of paragraph 10 to the satisfaction of the arbitral group.
Approved Persons
12. Each Party shall submit to the other Party and the arbitral group a list of its authorized representatives who need access to confidential information submitted by the other Party and whom it wishes to have designated as approved persons. Each Party shall keep the number less than 30 persons on its list. The arbitral group shall, in the same manner, submit to the Parties a list of the authorized employees who have access to confidential information in the dispute. The Parties may submit amendments to their lists at any time.
13. Subject to paragraph 14 of this Annex, the arbitral group shall designate the approved persons of the Parties on the lists submitted under paragraph 12 of this Annex. All approved persons of the Parties, even the authorized employees of the arbitral group, must filed and present to the arbitral group the Declaration of Non-Disclosure included in this Annex.
14. Inthe event that a Party submitting confidential information objects to a person being designated as approved person, the arbitral group shall decide on the objection forthwith. If the arbitral group allows the designation, the information may not be disclosed to the approved person until the Party submitting the information has had a reasonable opportunity to:
(a) withdraw the information, in which case the arbitral group and the other Party shall promptly return any record containing the information to the Party submitting it; or
(b) withdraw the designation of the information as confidential. Rules for Use and Storage of Confidential Information Governed by this Annex
15. Records containing confidential information shall not be copied, distributed or removed from a locked storage receptacle, except as specifically provided in these procedures.
16. Each Party and the arbitral group shall store in a locked storage receptacle to which only approved persons have access any record containing confidential information submitted to it by the Parties.
17. An approved person shall take all necessary precautions to safeguard confidential information when a record containing the information is in use or being stored.
18. Only approved persons may view or hear confidential information. No approved person who views or hears confidential information may disclose it, or allow it to be disclosed, to any person other than another approved person for the dispute.
19. Approved persons who view or hear confidential information shall use that information only for the purposes of the arbitral group proceedings and for no other purposes.
20. The arbitral group shall not disclose confidential information in its report, but may state conclusions drawn from that information.
21. An approved person viewing or hearing confidential information may take written summary notes of that information for the sole purpose of the arbitral group proceeding. Those notes are subject to the requirements of paragraphs 16, 17 and 25 of this Annex.
22. A Party may bring with it to an arbitral group hearing, for the sole purpose of that hearing, records containing confidential information that it has received from the other Party, but shall immediately thereafter return those records to their locked storage receptacle pursuant to paragraph 16 of this Annex.
23. A Party that intends to submit confidential information during an arbitral group hearing shall inform the arbitral group prior to so doing. Only approved persons may attend or observe the hearing for the duration of the submission and discussion of that information.
Disposal of Confidential Information
24. After the conclusion of the arbitral group proceeding, within a period fixed by the arbitral group, a Party shall return to the other Party that first submitted confidential information any record containing the confidential information, unless the Party that first submitted the confidential information otherwise agree.
Additional or Alternative Procedures
25. The arbitral group may apply any additional procedures that it considers necessary to protect the confidentiality of confidential information.
26. The arbitral group may, at the request of or with the consent of the Parties, modify or waive any part of the procedures set forth in this Annex.
Punishment of disclosing confidential information
27. Any approved person of a Party revealing the confidential information provided by a Party, shall be subject to prosecution and punishment in the territory of the approved person's Party in accordance with the criminal laws of that territory.
Declaration of Non-Disclosure Form
1. I acknowledge having received a copy of the procedures governing the treatment of confidential information (the "Procedures") found in Annex 22.1.1.(e) (Confidential Information) of chapter 22 (Dispute Settlement).
2. I acknowledge having read and understood the Procedures.
3. I agree to be bound by, and to adhere to, the provisions of the Procedures and,
accordingly, without limitation, to treat confidentially all confidential information that | may view or hear from time to time in accordance with the Procedures.
Executed on this ____________day of 200____________.
BY: ______________(Signature) Name:________________
Chapter 23. Exceptions
Article 23.01. General Exceptions
1. For purposes of Chapters 3 through 5 (National Treatment and Market Access for Goods, Rules of Origin and Related Customs Procedures, Trade Facilitation), 8 (Sanitary and Phytosanitary Measures) and 9 (Technical Barriers to Trade), Article XX of the GATT 1994 and its interpretive notes are incorporated into and made part of this Agreement, mutatis mutandis. The Parties understand that the measures referred to in Article XX (b) of the GATT 1994 include environmental measures necessary to protect human, animal, or plant life or health, and that Article XX(g) of the GATT 1994 applies to measures relating to the conservation of living and non-living exhaustible natural resources.
2. For purposes of Chapters 11 (Cross-Border Trade in Services), 13 (Telecommunications) and 14 (1) (Electronic Commerce), Article XIV of the GATS (including its footnotes) is incorporated into and made part of this Agreement, mutatis mutandis. The Parties understand that the measures referred to in Article XIV(b) of the GATS include environmental measures necessary to protect human, animal, or plant life or health.
Article 23.02. National Security
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) prevent any Party from taking any actions that it considers necessary for the protection of its essential security interests:
(i) relating to the traffic in arms, ammunition and implements of war and to such traffic and transactions in other goods, materials, services and technology undertaken directly or indirectly for the purposes of supplying a military or other security establishment,
(ii) taken in time of war or other emergency in international relations, or
(iii) relating to the implementation of national policies or international agreements respecting the non-proliferation of nuclear weapons or other nuclear explosive devices; or
(c) prevent any Party from taking action in fulfilling of its obligations under the United Nations Charter for the maintenance of international peace and security.
Article 23.03. Taxation
1. Except as set out in this Article, nothing in this Agreement shall apply to taxation measures.
2. Nothing in this Agreement shall affect the rights and obligations of any Party under any tax convention. In the event of any inconsistency between this Agreement and any such convention, the convention shall prevail to the extent of the inconsistency.
3. Where similar provisions with respect to a taxation measure exist under this Agreement and under a tax convention, the procedural provisions of the tax convention alone shall be used, by the competent authorities identified in the tax convention, to resolve any issue related to such provisions arising under this Agreement.
4. Notwithstanding paragraphs 2 and 3:
(a) Article 3.02 (National Treatment) and such other provisions of this Agreement as are necessary to give effect to that Article shall apply to taxation measures to the same extent as does Article III of the GATT 1994; and
(b) Article 3.13 (Export Taxes) shall apply to taxation measures. 5. Subject to paragraphs 2, 3, and 6:
(a) Article 11.02 (National Treatment) and Article 12.02 (National Treatment) shall apply to taxation measures on income, capital gains or on the taxable capital of corporations, that relate to the purchase or consumption of particular services, and
(b) Articles 10.3 (National Treatment) and 10.04 (Most-Favored Nation Treatment), Articles 11.02 (National Treatment) and 11.3 (Most-Favored Nation Treatment) and Articles 12.02 (National Treatment) and 12.03 (Most-Favored Nation Treatment) shall apply to all taxation measures, other than those on income, capital gains or on the taxable capital of corporations as well as estate, inheritance and gift taxes.
6. Paragraph 5 shall not
(a) impose any most-favored-nation obligation with respect to an advantage accorded by a Party pursuant to a tax convention;
(b) impose on a Party any national treatment obligation with respect to the conditioning of a receipt, or continued receipt, of an advantage relating to the contributions to, or income of, pension trusts or pension plans on a requirement that the Party maintain continuous jurisdiction over the pension trust or pension plan;
(c) impose on a Party any national treatment obligation with respect to the conditioning of a receipt, or continued receipt, of an advantage relating to the purchase or consumption of a particular service on a requirement that the service be provided in its territory;
(d) apply to a non-conforming provision of any existing taxation measure;
(e) apply to the continuation or prompt renewal of a non-conforming provision of any existing taxation measure;
(f) apply to an amendment to a non-conforming provision of any existing taxation measure to the extent that the amendment does not decrease its conformity, at the time of the amendment, with any of the Articles referred to in paragraph 5; or
(g) apply to the adoption or enforcement of any taxation measure aimed at ensuring the equitable or effective imposition or collection of taxes (as permitted by Article XIV(d) of the GATS).
7. Subject to paragraphs 2 and 3, and without prejudice to the rights and obligations of the Parties under paragraph 4, Article 10.09 (Performance Requirements) shall apply to taxation measures.
8. Notwithstanding paragraphs 2 and 3, Article 10.7 (Expropriation and Compensation) shall apply to taxation measures except that no investor may invoke that Article as the basis for a claim under Article 10.16 (Submission of a Claim to Arbitration), where it has been determined pursuant to this paragraph that a taxation measure is not an expropriation. The investor shall refer the issue of whether a measure is not an expropriation for a determination to the designated authorities of the Party whose taxation measure is at issue and the Party of the investor at the time that it gives notice under Article 10.16.2. If, within a period of six months from the date of such referral, those authorities do not agree to consider the issue or, having agreed to consider it, fail to agree that the measure is not an expropriation, the investor may submit its claim to arbitration under Article 10.16.
Article 23.04. Balance of Payments
1. Nothing in this Agreement shall be construed as to prevent a Party from adopting or maintaining measures that restrict trade of goods and services, transfers, or both, where the Party experiences financial or balance of payments difficulties or threat thereof.
2. For purposes of paragraph 1, article XIl of GATT 1994, the Understanding on the Balance of Payments Provisions of the GATT 1994, and Article XII of GATS, are hereby incorporated into and made a part of this article.
Article 23.05. Disclosure of Information
Nothing in this Agreement shall be construed to require a Party to furnish or allow access to confidential information the disclosure of which 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.
Article 23.06. Definitions
For purposes of this Chapter:
tax convention means a convention for the avoidance of double taxation or other international taxation agreement or arrangement; and
taxes and taxation measures do not include:
(a) a customs duty; or
(b) the measures listed in exceptions (b), (c) and (d) of the definition of customs duty of Article 2.01 (Definitions of General Application).
Annex 23.03 Competent Authorities For purposes of this Chapter: competent authorities means
(a) inthe case of the Republic of Nicaragua, the Ministerio de Hacienda y Crédito Publico and Banco Central de Nicaragua; and
(b) in the case of the Republic of China (Taiwan), the Ministry of Finance and Central Bank,
or their successors.
Annex 23.03. Competent Authorities
For purposes of this Chapter:
competent authorities means
(a) in the case of the Republic of Nicaragua, Ministerio de Hacienda y Crédito Público and Banco Central de Nicaragua; and
(b) in the case of the Republic of China (Taiwan), Ministry of Finance and Central Bank;
or their successors.
Chapter 24. Final Provisions
Article 24.01. Annexes, Appendices, and Footnotes
The Annexes, Appendices, and footnotes to this Agreement constitute an integral part of this Agreement.
Article 24.02. Amendments
1. The Parties may agree on any amendment or addition to this Agreement.
2. The amendments or additions agreed shall take effect on the date when so approved in accordance with the applicable legal procedures of each Party, and shall constitute an integral part of this Agreement.
Article 24.03. Reservations
This Agreement may not be subject to reservations or interpretative declarations by either Party at the time of its ratification.
Article 24.04. Entry Into Force
This Agreement shall have indefinite duration and shall enter into force between the Republic of Nicaragua and the Republic of China (Taiwan) on the thirtieth day from the date on which the countries have exchanged their ratification instruments certifying that the procedures and legal formalities have been concluded.
Article 24.05. Accession
Any country or group of countries may accede to this Agreement subject to such terms and conditions as may be agreed between such country or countries and the Commission and following approval in accordance with the applicable legal procedures of each Party and acceding country or countries.
Article 24.06. Withdrawal
1. Either Party may_withdraw from this Agreement. The withdrawal shall enter into force 180 days after notification to the other Party without prejudice to a different period that the Parties may agree.
2. In the case of the accession of a country or group of countries consistent with Article 24.05, nevertheless that a Party withdraws from this Agreements, this Agreement shall remain in force for the remaining Parties.
Article 24.07. Authentic Texts
The English, Spanish and Chinese texts of this Agreement are equally authentic. In the event of any discrepancy in the interpretation of this Agreement, the English version shall prevail.
Conclusion
IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective Governments, have signed this Agreement.
DONE, in Taipei City, the Republic of China (Taiwan), in duplicate, in the English, Spanish and Chinese languages, this sixteenth day of June of the year two thousand and six.
FOR THE GOVERNMENT OF THE REPUBLIC OF CHINA (TAIWAN )
HWANG ING-SAN
MINISTER OF ECONOMIC AFFAIRS
FOR THE GOVERNMENT OF THE REPUBLIC OF NICARAGUA
ALEJANDRO ARGUELLO
MINISTER OF DEVELOPMENT, INDUSTRY AND TRADE
Attachments
Annex II. Schedule of the Republic of Nicaragua
Sector: All Sectors
Obligations Concerned: National Treatment (Article 10.03, Investment) Senior Management and Boards of Directors (Article 10.10, Investment)
Description: Investment
The Republic of Nicaragua reserves the right to limit the transfer or disposal of any interest held in an existing state enterprise, such that only a Nicaraguan national may receive such interest. However, the preceding sentence pertains only to the initial transfer or disposal of such interest. The Republic of Nicaragua does not reserve this right with respect to subsequent transfers or disposals of such interest.
The Republic of Nicaragua reserves the right to limit control of any new enterprise created by the transfer or disposal of any interest as described in the preceding paragraph through means other than limitations on the ownership of the interest. The Republic of Nicaragua also reserves the right to adopt or maintain any measure related to the nationality of senior management and members of the board of directors in such new enterprise.
Sector: Minority Affairs and Indigenous Peoples
Obligations Concerned: National Treatment (Articles 10.03, Investment and 11.02, Services) Most-Favored-Nation Treatment (Articles 10.04, Investment and 11.03, Services) Local Presence (Article 11.06, Services) Performance Requirements (Article 10.09, Investment) Senior Management and Boards of Directors (Article 10.10, Investment)
Description: Cross-Border Services and Investment
The Republic of Nicaragua reserves the right to adopt or maintain any measure granting rights or preferences to socially or economically disadvantaged minorities and indigenous peoples.
Sector: Business services - Legal services
Obligations Concerned: National Treatment (Articles 10.03, Investment and 11.02, Services) Senior Management and Boards of Directors (Article 10.10, Investment) Local Presence (Article 11.06, Services)
Description: Cross-Border Services and Investment