The resolutions of the National Commission on Foreign Investments (Comision Nacional de Inversiones Extranjeras), established in existing measures 2 and 3 of Mexico's Schedule to Annex I, shall not be subject to the provisions established in the dispute settlement mechanism between a Party and an investor of the other Party established in Section B of this Chapter and the dispute settlement mechanism of Chapter 23 (Dispute Settlement).
Annex 8-E. SUBMISSION OF A CLAIM TO ARBITRATION
1. An investor of a Party may not submit to arbitration under Section B a claim that Chile, Colombia, Mexico, or Peru has breached an obligation under Section A either:
(a) on its own behalf under Article 8.20.1(a); or
(b) on behalf of an enterprise of Chile, Colombia, Mexico or Peru that is a juridical person that the investor owns or controls directly or indirectly under Article 8.20.1(b),
if the investor or the enterprise, respectively, has alleged that breach of an obligation under Section A in proceedings before a court or administrative tribunal of Chile, Colombia, Mexico, or Peru.
2. For greater certainty, if an investor of a Party elects to submit a claim of the type described in paragraph 1 to a court or administrative tribunal of the other Party, that election shall be definitive and exclusive, and the investor may not thereafter submit the claim to arbitration under Section B.
Annex 8-F. SERVICE OF DOCUMENTS ON A PARTY UNDER SECTION B
Notices and other documents in disputes under Section B shall be served by delivery to:
(a) For Chile:
Dirección de Asuntos Jurídicos
Subsecretaría de Relaciones Económicas Internacionales
Ministerio de Relaciones Exteriores de la Republica de Chile
Teatinos No. 180
Santiago, Chile
(b) For Colombia:
Dirección de Inversión Extranjera y Servicios
Ministerio de Comercio, Industria y Turismo
Calle 28 No. 13 A – 15, piso 3
Bogotá D.C. – Colombia
(c) For Mexico:
Dirección General de Consultoría Jurídica de Comercio Internacional
Secretaría de Economía
Pachuca No. 189, piso 19
Delegación Cuauhtémoc
México D.F.
C.P.06140
(d) For Peru:
Dirección General de Asuntos de Economía Internacional, Competencia y
Productividad
Ministerio de Economía y Finanzas
Jirón Lampa No. 277, piso 5
Lima 1, Perú
(e) For Singapore:
Permanent Secretary
Ministry of Trade & Industry
100 High Street #09-01
Singapore 179434
Singapore
Chapter 9. CROSS-BORDER TRADE IN SERVICES
Article 9.1. Definitions
For the purposes of this Chapter:
airport operation services means the supply of air terminal, airfield and other airport infrastructure operation services on a fee or contract basis. Airport operation services do not include air navigation services;
computer reservation system (CRS) services means 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 a Party into the territory of the other Party; (b) in the territory of a 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 8.1 (Definitions);
enterprise means an enterprise, as defined in Article 2.1 (General Definitions), and a branch of an enterprise;
ground handling services means the supply at an airport, on a fee or contract basis, of the following services: airline representation, administration and supervision; passenger handling; baggage handling; ramp services; catering, except the preparation of the food; air cargo and mail handling; fuelling of an aircraft; aircraft servicing and cleaning; surface transport; and flight operations, crew administration and flight planning. Ground handling services do not include: self- handling; security; line maintenance; aircraft repair and maintenance; or management or operation of essential centralised airport infrastructure, such as de-icing facilities, fuel distribution systems, baggage handling systems and fixed intra-airport transport systems;
measures adopted or maintained by a Party means measures adopted or maintained by:
(a) central, regional, or local governments or authorities; or
(b) non-governmental bodies in the exercise of powers delegated by central, regional, or local governments or authorities;
selling and marketing of air transport services means 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 or the applicable conditions;
service supplied in the exercise of governmental authority means for each Party, any service which is supplied neither on a commercial basis, nor in competition with one or more service suppliers;
service supplier of a Party means a person of a Party that seeks to supply or supplies a service;
specialty air services means any specialised commercial operation using an aircraft whose primary purpose is not the transportation of goods or passengers, such as aerial fire-fighting, flight training, spraying, sightseeing, surveying, mapping, photography, parachute jumping, glider towing, helicopter-lift for logging and construction, and other airborne agricultural, industrial, and inspection services.
Article 9.2. Scope
This Chapter shall apply to measures adopted or maintained by a Party affecting cross-border trade in services supplied by service suppliers of the other Party. Such measures include measures affecting:
(a) the production, distribution, marketing, sale or 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 telecommunication networks, and services in connection with the supply of a service;
(d) the presence in the Party's 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 supply of a service.
2. This Chapter shall not apply to:
(a) financial services, as defined in paragraph 5(a) of the Annex on Financial Services of GATS;
(b) air services, including domestic and international air transportation services, whether scheduled or non-scheduled, or to related services in support of air services, other than:
(i) aircraft repair and maintenance services while an aircraft is withdrawn from service, excluding so-called line maintenance;
(ii) specialty air services;
(iii) the selling and marketing of air transport services;
(iv) computer reservation system (CRS) services;
(v) airport operation services, and
(vi) ground handling services.
(c) government procurement;
(d) subsidies or grants provided by a Party including government-supported loans, guarantees and insurance, and
(e) services supplied in the exercise of governmental authority.
3. In the event of any inconsistency between this Chapter and a bilateral, plurilateral or multilateral air services agreement to which the Parties are party, the air services agreement shall prevail in determining the rights and obligations of the Parties that are party to that air services agreement.
4. If the Parties have the same obligations under this Agreement and a bilateral, plurilateral or multilateral air services agreement, the Parties may invoke the dispute settlement procedures of this Agreement only after any dispute settlement procedures in the other agreement have been exhausted.
5. In addition to paragraph 1, Articles 9.6, 9.8 and 9.9 shall also apply to measures adopted or maintained by a Party affecting the supply of a service in its territory by a covered investment. (1)
6. 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 who is employed on a permanent basis in its territory, and does not confer any right on that national with respect to that access or employment.
7. If the Annex on Air Transport Services of GATS is amended, the Parties shall jointly review any new definitions with a view to aligning the definitions in this Agreement with those definitions, as appropriate.
Article 9.3. National Treatment
1. Each Party shall accord to services and service suppliers of the other Party treatment no less favourable than that it accords, in like circumstances, to its own services and service suppliers.
2. For greater certainty, the treatment to be accorded by a Party under paragraph 1 means, with respect to a regional level of government, treatment no less favourable than the most favourable treatment accorded, in like circumstances, by that regional level of government to service suppliers of the Party of which it forms a part.
3. For greater certainty, whether treatment referred to in paragraph 1 is accorded in "like circumstances" depends on the totality of the circumstances, including whether the relevant treatment distinguishes between services or service suppliers on the basis of legitimate public welfare objectives.
Article 9.4. Most-Favoured-Nation Treatment
1. Each Party shall accord to services and service suppliers of the other Party treatment no less favourable than that it accords, in like circumstances, to services and service suppliers of a non-Party.
2. For greater certainty, whether treatment referred to in paragraph 1 is accorded in “like circumstances” depends on the totality of the circumstances, including whether the relevant treatment distinguishes between services or services suppliers on the basis of legitimate public welfare objectives.
Article 9.5. Local Presence
No Party shall require a service supplier of the other Party to establish or maintain a representative office or any other form of enterprise, or to be resident, in its territory as a condition for the cross-border supply of a service.
Article 9.6. Market Access
No Party shall adopt or maintain, either on the basis of a regional subdivision or on the basis of its entire territory, 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 9.7. Non-Conforming Measures
1. Articles 9.3, 9.4, 9.5 and 9.6 shall not apply to:
(a) any existing non-conforming measure that is maintained by a Party at:
(i) the central level of government, as set out by that Party in its Schedule to Annex I,
(ii) a regional level of government, as set out by that Party in its Schedule to Annex I, or
(iii) a local level of 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 9.3, 9.4, 9.5 and 9.6.
2. Articles 9.3, 9.4, 9.5 and 9.6 shall not apply to any measure that a Party adopts or maintains with respect to sectors, sub-sectors or activities, as set out by that Party in its Schedule to Annex I.
Article 9.8. Transparency
1. Each Party shall establish or maintain appropriate mechanisms for responding to inquiries from interested persons regarding its regulations that relate to the subject matter of this Chapter. (3)
2. Prior to adopting final regulations relating to the subject matter of this Chapter, each Party shall, to the extent possible consider comments received from interested persons with respect to the proposed regulations.
3. To the extent possible, each Party shall allow a reasonable time between the publication of final regulations and the date when they enter into effect.
Article 9.9. Domestic Regulation
1. Each Party shall ensure that all measures of general application affecting trade in services are administered in a reasonable, objective and impartial manner.
2. If a Party requires authorisation for the supply of a service, it shall ensure that its competent authorities:
(a) to the extent practicable, permit an applicant to submit an application at any time and shall endeavour to accept applications electronically;
(b) if a specific time period for application exists, allow a reasonable period of time for the submission of an application;
(c) in the case of an incomplete application, at the request of the applicant, and to the extent practicable, provide guidance on the additional information required to complete the application and provide the applicant with the opportunity to rectify minor errors and omissions within the application;
(d) inform the applicant of the decision concerning the application within a reasonable period of time after the submission of an application considered complete under its laws and regulations;
(e) to the extent practicable, establish an indicative timeframe for the processing of an application;
(f) on request of the applicant provide, without undue delay, information concerning the status of the application;
(g) if an application is rejected, to the extent practicable, inform the applicant of the reasons for the rejection, either directly or on request, as appropriate; and
(h) if they deem appropriate, accept copies of documents that are authenticated in accordance with the Party's laws and regulations in place of original documents.
3. With a view to ensuring that measures relating to qualification requirements and procedures, technical standards and licensing requirements do not constitute unnecessary barriers to trade in services, while recognising the right to regulate and to introduce new regulations on the supply of services in order to meet its policy objectives, each Party shall endeavour to ensure that any such measures that it adopts or maintains:
(a) are based on objective and transparent criteria, such as competence and the ability to supply the service;
(b) not more burdensome than necessary to ensure the quality of the service;
(c) in the case of licensing procedures, are not in themselves a restriction on the supply of the service, and
(d) to the extent practicable, avoid requiring an applicant to approach more than one competent authority for each application for authorisation. (4)
4. If a Party maintains measures relating to licensing requirements and procedures, qualification requirements and procedures and technical standards, the Party shall ensure that the competent authority reaches and administers its decisions in an independent manner. (5)
5. In determining whether a Party is in conformity with its obligations under paragraph 3, international standards of relevant international organisations applied by that Party shall be taken into account. (6)
6. Each Party shall ensure that any authorisation fee charged by any of its competent authorities is reasonable, transparent, and does not, in itself, restrict the supply of the relevant service. (7)
7. If licensing or qualification requirements include the completion of an examination, each Party shall ensure that:
(a) the examination is scheduled at reasonable intervals; and
(b) a reasonable period of time is provided to enable interested persons to submit an application to take the examination.
8. Each Party shall ensure that there are procedures in place domestically to assess the competency of professionals of the other Party.
9. Each Party shall, to the extent practicable, make publicly available information concerning the requirements and procedures for issuing licences and qualifications. Such information should include, where it exists, the following:
(a) whether it is necessary to renew the licence or the qualifications for the supply of a service;
(b) the contact details of the competent authority;
(c) the requirements, procedures and fees applicable to the issuing of licences and qualifications, and
(d) the procedures for appeals or reviews of decisions concerning applications, where applicable.
10. If the results of the negotiations related to paragraph 4 of Article VI of the GATS or the results of any similar negotiations undertaken in other multilateral fora in which the Parties participate, enter into effect, the Parties shall jointly review these results, with a view to determining whether such results should be incorporated into this Agreement.
11. This Article shall not apply to the non-conforming aspects of measures that are not subject to the obligations under Article 9.3 or Article 9.6 by reason of an entry in a Party's Schedule to Annex I, or to measures that are not subject to the obligations under Article 9.3 or Article 9.6 by reason of an entry in a Party's Schedule to Annex II.
Article 9.10. Recognition
1. For the purposes of the fulfilment, in whole or in part, of a Party's standards or criteria for the authorisation, licensing, or certification of service suppliers, and subject to the requirements of paragraph 4, a Party may recognise the education or experience obtained, requirements met, or licences or certifications granted, in the territory of the other Party or a non-Party. Such recognition, which may be achieved through harmonisation or otherwise, may be based upon an agreement or arrangement with the other Party or non-Party concerned, or may be accorded autonomously.
2. If a Party recognises, autonomously or by agreement or arrangement, the education or experience obtained, requirements met or licences or certifications granted in the territory of a non-Party, nothing in Article 9.4 shall be construed to require the Party to accord recognition to the education or experience obtained, requirements met or licences or certifications granted in the territory of the other Party.
3. A Party that is party to an agreement or arrangement of the type referred to in paragraph 1, whether existing or future, shall afford adequate opportunity to the other Party, on request, to negotiate its accession to that agreement or arrangement, or to negotiate a comparable agreement or arrangement. If a Party accords recognition autonomously, it shall afford adequate opportunity to the other Party to demonstrate that education, experience, licences or certifications obtained or requirements met in that other Party's territory should be recognised.