7. Upon request, a Party shall provide, to the extent possible, information on the standards used in a specific technical regulation.
8. Parties shall endeavour, to the extent possible, to cooperate in areas of mutual interest in international standardisation forums. This cooperation may include the exchange of positions.
Article 7.6. Technical Regulations
A Party that has prepared a technical regulation that it considers to be equivalent to a technical regulation of the other Party may request that the other Party recognise the technical regulation as equivalent. The Party shall make the request in writing and set out detailed reasons why the technical regulation should be considered equivalent, including reasons with respect to product scope. If a Party does not agree that the technical regulation is equivalent it shall provide to the other Party, upon request, the reasons for its decision.
Article 7.7. Conformity Assessment
1. Each Party recognises that there is a wide range of mechanisms to facilitate the acceptance of the results of the conformity assessment procedures carried out in the territory of the other Party, which may include:
(a) voluntary arrangements between the conformity assessment bodies in the territory of the Parties;
(b) agreements on the mutual recognition of the results of conformity assessment procedures performed by bodies located in its territory and the other Party's territory with respect to specific technical regulations;
(c) use of accreditation to qualify conformity assessment bodies, particularly international systems of accreditation;
(d) recognition of regional and international mutual recognition arrangements between or among accreditation bodies or conformity assessment bodies.
(e) government approval or designation of conformity assessment bodies;
(f) unilateral recognition of the results of conformity assessment bodies located in the territory of the other Party; and
(g) acceptance by the importing Party of a supplier's declaration of conformity.
2. The Parties shall strengthen the exchange of information in relation to these and similar mechanisms, in order to facilitate the acceptance of the results of the conformity assessment procedures. Parties recognise that the choice of the appropriate mechanisms in a given regulatory context depends on a variety of factors, such as the product and sector involved, the volume and direction of trade, the relationship between the Parties' respective regulators, the legitimate objectives pursued and the risks of non-fulfilment of those objectives.
3. If a Party does not accept the results of the conformity assessment procedures carried out in the other Party's territory, it shall, upon the other Party's request, explain the reasons for its decision.
4. Each Party shall accord to conformity assessment bodies located in the territory of the other Party treatment no less favourable than that it accords to conformity assessment bodies located in its own territory or in the territory of any other Party to the Pacific Alliance. In order to ensure that it accords such treatment, each Party shall apply the same or equivalent procedures, criteria and other conditions to accredit, approve, license or otherwise recognise conformity assessment bodies located in the territory of the other Party that it may apply to conformity assessment bodies in its own territory.
5. Paragraph 4 shall not preclude a Party from undertaking conformity assessment in relation to a specific product solely within specified government bodies located in its own territory or in the other Party's territory, in a manner consistent with its obligations under the TBT Agreement.
6. Ifa Party refuses to accredit, approve, license or otherwise recognise a body located in the territory of the other Party that assesses the conformity of a specific technical regulation, it shall, upon request, explain the reasons for its refusal.
7. Further to Article 5.2.5 of the TBT Agreement, each Party shall limit any conformity assessment fee imposed by the Party to the approximate cost of the services rendered to do the assessment.
8. Each Party shall give positive consideration to negotiating mutual recognition agreements for the results of its respective conformity assessment procedures carried out by bodies in the territory of the other Party. If either of the Parties refuses to begin these negotiations it shall, upon request, explain the reasons for its decision.
9. Further to Article 6.1 of the TBT Agreement, with the aim of building mutual confidence in the results of the conformity assessment procedures, the Parties may request information on conformity assessment bodies including aspects of technical competence, such as testing methods.
Article 7.8. Transparency
1. The Parties shall notify each other electronically, through the enquiry point established by each Party in accordance with Article 10 of the TBT Agreement, of proposals for new technical regulations and conformity assessment procedures, and amendments to existing technical regulations and conformity assessment procedures, as well as those adopted to address urgent problems on the terms established by the TBT Agreement, at the same time that they send the notification to the WTO Central Registry of Notifications. This notification shall include an electronic link to the notified document, or a copy of that document.
2. Each Party shall notify even those proposals for new technical regulations and conformity assessment procedures and amendments to existing technical regulations and conformity assessment procedures that are in accordance with the technical content of relevant international standards and that may have a significant effect on trade of the other Party.
3. Each Party shall respond in writing to the comments received from the other Party during the consultation period stipulated in the notification, no later than the date of publication of the final version of the technical regulation or conformity assessment procedure.
4. Each Party shall publish or make available to the public or the other Party, by printed or electronic means and no later than the date of publication of the final version of the technical regulation or conformity assessment procedure its responses or a summary of its responses to significant or substantive issues presented in the comments received from the other Party during the consultation period stipulated in the notification.
5. Each Party shall publish preferably by electronic means, in a single official journal or website all proposals for new technical regulations and conformity assessment procedures and proposals for amendments to existing technical regulations and conformity assessment procedures, and all new final technical regulations and conformity assessment procedures and final amendments to existing technical regulations and conformity assessment procedures, of central government bodies, that a Party is required to notify or publish under the TBT Agreement or this Chapter, and that may have a significant effect on trade. (2)
6. Each Party shall endeavour to notify final versions of technical regulations and conformity assessment procedures as an addendum to the original notification at the same time they are adopted and made available to the public on a government website.
7. Each Party shall allow, in accordance with its own internal procedures, interested persons of the other Party to participate in the development of its standards, technical regulations and conformity assessment procedures, on terms no less favourable than those granted to its own nationals. (3)
8. Each Party shall recommend to non-governmental standardisation bodies recognised by that Party in its territory that they observe paragraph 7 with respect to consultation processes for the development of standards or voluntary conformity assessment procedures.
9. Each Party shall normally allow a period of at least 60 days, from the date it submits a notification under this Article, in order to enable the other Party or interested person from the other Party to make written comments on the proposed technical regulations and conformity assessment procedures, except when urgent problems of safety, health, environmental protection or national security arise or threaten to arise. Each Party shall positively consider reasonable requests of the other Party to extend the comment period.
10. Subject to the conditions specified in Articles 2.12 and 5.9 of the TBT Agreement, regarding the reasonable interval between the publication of the technical regulations and conformity assessment procedures and their entry into force, the Parties shall interpret the expression "reasonable interval" as meaning, normally, a period of no less than six months, except when this would be ineffective to fulfil the legitimate objectives pursued.
11. In the case of the existence of yearly or half-yearly work programmes related to technical regulations, each Party shall, if it deems appropriate, endeavour to disclose to the public this information through printed or electronic publications.
Article 7.9. Administration of this Chapter
1. Matters relating to administration of this Chapter shall be considered by the Parties through the Trade in Goods Committee established under Article 22.5(a) (Establishment of Cross-Cutting Committees).
2. The Trade in Goods Committee shall have the following additional functions under this Chapter:
(a) discussing any issue that a Party raises under this Chapter related to the preparation, adoption or application of standards, technical regulations or conformity assessment procedures;
(b) encouraging cooperation between the Parties in matters that are relating to this Chapter, including the development, review or modification of technical regulations, standards and conformity assessment procedures;
(c) facilitating, as appropriate, regulatory cooperation between the Parties and sectoral cooperation between governmental and non-governmental bodies in the field of standards, technical regulations and conformity assessment procedures in the Parties' territories;
(d) exchanging information on the work carried out in non-governmental, regional and multilateral forums and cooperation programmes involved in activities related to standards, technical regulations and conformity assessment procedures;
(e) reviewing this Chapter in the light of any developments within the WTO's Committee on Technical Barriers to Trade and developing recommendations for amendments to this Chapter, if necessary;
(f) at a Party's written request, facilitating technical discussions on any matter arising under this Chapter;
(g) establishing roundtables, special sessions or workshops with experts in order to cover topics of mutual interest in the field of regulatory cooperation;
(h) carrying out any other action that the Parties consider necessary to help in the implementation of this Chapter and the TBT Agreement; and
(i) giving positive consideration to any request made by a Party to deepen cooperation in accordance with this Chapter. Requests may include proposals for specific sectoral initiatives or other initiatives, such as annexes.
3. To determine what activities the Trade in Goods Committee will undertake under this Chapter, the Trade in Goods Committee shall consider work that is being undertaken in other fora, with a view to ensuring that any activities undertaken by the Trade in Goods Committee do not unnecessarily duplicate that work.
Article 7.10. Information Exchange
Any information or explanation requested by a Party, under the provisions of this Chapter, must be provided by the Party receiving the request, in writing or by electronic means, within a 60- day period following the initial request. The Party receiving the request shall endeavour to respond every request within a 30-day period following the submission. The responding Party may extend the period of time for answering, by providing such notice to the inquiring Party, prior to the end of the 60-day period.
Article 7.11. Implementation Annexes
The Parties may negotiate annexes to deepen the disciplines of this Chapter. The annexes resulting from such negotiation shall constitute an integral part of this Agreement.
Article 7.12. Technical Discussions
1. Each Party shall give prompt and positive consideration to any request by the other Party to hold technical discussions on specific trade concerns, related to the implementation of this Chapter.
2. Unless the Parties agree otherwise, the discussions and any information exchanged in the course of the discussions shall be confidential and without prejudice to the rights and obligations of the Parties under this Agreement, the WTO Agreement or any other agreement to which both Parties are party.
3. When the Parties have concluded the technical discussions under paragraph 1, such technical discussions, by consent of the Parties shall constitute the consultations referred in the Article 23.6 (Consultations).
Chapter 8. INVESTMENT
Section A.
Article 8.1. Definitions
For the purposes of this Chapter:
Centre means the International Centre for Settlement of Investment Disputes (ICSID) established by the ICSID Convention;
claimant means an investor of a Party that is party to an investment dispute with the other Party. If that investor is a natural person who is a permanent resident of a Party and a national of the other Party, that natural person may not submit a claim to arbitration against that latter party;
covered investment means, with respect to a Party, an investment in its territory of an investor of the other Party in existence as of the date of entry into force of this Agreement or established, acquired or expanded thereafter;
disputing parties means the claimant and the respondent;
disputing party means either the claimant or the respondent;
enterprise means an enterprise as defined in Article 2.1 (General Definitions), and a branch of an enterprise;
enterprise of a Party means an enterprise constituted or organised under the law of a Party, or a branch located in the territory of a Party and carrying out business activities there; (1)
financial institution means any financial intermediary or other enterprise that is authorised to do business and regulated or supervised as a financial institution under the law of the Party in whose territory it is located;
financial institution of the other Party means a financial institution, including a branch, located in the territory of a Party that is controlled by persons of the other Party;
freely usable currency means "freely usable currency" as determined by the International Monetary Fund under its Articles of Agreement,
ICSID Additional Facility Rules means the Rules Governing the Additional Facility for the Administration of Proceedings by the Secretariat of the International Centre for Settlement of Investment Disputes;
ICSID Convention means the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, done at Washington on March 18, 1965;
investment means every asset that an investor owns or controls, directly or indirectly, that has the characteristics of an investment, including such characteristics as the commitment of capital or other resources, the expectation of gain or profit, or the assumption of risk. Forms that an investment may take include:
(a) an enterprise;
(b) shares, stock and other forms of equity participation in an enterprise;
(c) bonds, debentures, other debt instruments and loans (2) (3)of an enterprise but does not include debt instruments issued by a Party or a state enterprise, or loans issued to a Party or to a state enterprise, regardless of the original maturity of such debt instruments or loans as the case may be;
(d) futures, options and other derivatives;
(e) turnkey, construction, management, production, concession, revenue-sharing and other similar contracts;
(f) intellectual property rights;
(g) licences, authorisations, permits and similar rights conferred pursuant to the Party's law, (4) and
(h) other tangible or intangible, movable or immovable property, and related property rights, such as leases, mortgages, liens and pledges;
but investment does not include an order or judgement entered in a judicial or administrative action;
investor of a non-Party means, with respect to a Party, an investor who attempts to make (5), is making or has already made an investment in the territory of that Party, and that is not an investor of either Party;
investor of a Party means a Party or a national or an enterprise of a Party, that attempts to make, is making, or has made an investment in the territory of the other Party. A natural person with dual nationality shall be deemed to be exclusively a national of the State of his or her dominant and effective nationality;
New York Convention means the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York on June 10, 1958;
non-disputing Party means a Party that is not a party to an investment dispute;
protected information means confidential business information or information that is privileged or otherwise protected from disclosure under a Party's laws, including classified government information;
respondent means the Party that is a party to an investment dispute; Secretary-General means the Secretary-General of ICSID;
Third party funding means any funding that is provided by a person or enterprise who is not a disputing party in order to finance part or all of the cost of the proceedings including through a donation or a grant, or in return for a share or other interest in the proceeds or potential proceeds of the proceedings to which the disputing party may become entitled, including such remuneration that may be dependent on the outcome of the dispute.
TRIPS Agreement means the Agreement on Trade-Related Aspects of Intellectual Property Rights, set out in the WTO Agreement (6), and
UNCITRAL Arbitration Rules means the Arbitration Rules of the United Nations Commission on International Trade Law.
Article 8.2. Scope
1. This Chapter shall apply to measures adopted or maintained by a Party relating to:
(a) investors of the other Party;
(b) covered investments; and
(c) with respect to Article 8.9, all investments in the territory of that Party.
2. A Party’s obligations under this Chapter shall apply to measures adopted or maintained by:
(a) the central, regional or local governments or authorities of that Party; and
(b) any person, including a state enterprise or any other body, when it exercises any governmental authority delegated to it by central, regional or local governments or authorities of that Party. (7)
3. This Chapter does not apply to measures adopted or maintained by a Party relating to investors of the other Party, and investments of such investors, in financial institutions in the Party’s territory.
4. For greater certainty, this Chapter shall not bind a Party in relation to an act or fact that took place or a situation that ceased to exist before the date of entry into force of this Agreement for that Party.
Article 8.3. Right to Regulate
1. The Parties reaffirm their right to regulate within their respective territories to achieve legitimate policy objectives.
2. Nothing in this Chapter shall be construed to prevent a Party from adopting, maintaining or enforcing any measure, otherwise consistent with this Chapter, that it considers appropriate to ensure that investment activity in its territory is undertaken in a manner sensitive to environmental, health or other regulatory objectives.
Article 8.4. Relation to other Chapters
1. In the event of any inconsistency between this Chapter and another Chapter of this Agreement, the other Chapter shall prevail to the extent of the inconsistency.
2. A requirement of a Party that a service supplier of the other Party post a bond or other form of financial security as a condition for the cross-border supply of a service does not of itself make this Chapter applicable to measures adopted or maintained by the Party relating to such cross- border supply of the service. This Chapter shall apply to measures adopted or maintained by the Party relating to the posted bond or financial security, to the extent that the bond or financial security is a covered investment.
Article 8.5. National Treatment
1. Each Party shall accord to investors of the other Party treatment no less favourable than that it accords, in like circumstances, to its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation and sale or other disposition of investments in its territory.
2. Each Party shall accord to covered investments treatment no less favourable than that it accords, in like circumstances, to investments in its territory of its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation and sale or other disposition of investments.
3. For greater certainty, the treatment accorded by a Party under paragraphs 1 and 2 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 investors, and to investments of investors, of the Party of which it forms a part.
4. For greater certainty, whether treatment is accorded in "like circumstances" under this Article depends on the totality of the circumstances, including whether the relevant treatment distinguishes between investors or investments on the basis of legitimate public welfare objectives.
Article 8.6. Most-Favoured-Nation Treatment
1. Each Party shall accord to investors of the other Party treatment no less favourable than that it accords, in like circumstances, to investors of any non-Party, with respect to the establishment, acquisition, expansion, management, conduct, operation and sale or other disposition of investments in its territory.
2. Each Party shall accord to covered investments treatment no less favourable than it accords, in like circumstances, to investments in its territory of investors of any non-Party, with respect to the establishment, acquisition, expansion, management, conduct, operation and sale or other disposition of investments.
3. For greater certainty, the treatment referred to in this Article does not encompass international dispute resolution procedures or mechanisms such as those provided in Section B. Substantive obligations in other international investment treaties and other trade agreements do not in themselves constitute "treatment" and thus cannot give rise to a breach of this Article, absent measures adopted by a Party.
4. For greater certainty, the treatment accorded by a Party under this Article means, with respect to a regional level of government other than at the federal level, treatment no less favourable than the most favourable treatment accorded, in like circumstances, by that regional level of government to investors and to investments of such investors of any non-Party.
5. For greater certainty, whether treatment is accorded in "like circumstances" under this Article depends on the totality of the circumstances, including whether the relevant treatment distinguishes between investors or investments on the basis of legitimate public welfare objectives.
Article 8.7. Minimum Standard of Treatment (8)
1. Each Party shall accord to covered investments treatment in accordance with applicable customary international law principles, including fair and equitable treatment and full protection and security.
2. For greater certainty, paragraph 1 prescribes the customary international law minimum standard of treatment of aliens as the standard of treatment to be afforded to covered investments. The concepts of "fair and equitable treatment" and "full protection and security" do not require treatment in addition to or beyond that which is required by that standard, and do not create additional substantive rights. The obligation in paragraph 1 to provide:
(a) "fair and equitable treatment" includes the obligation not to deny justice in criminal, civil or administrative adjudicatory proceedings, in accordance with the principle of due process embodied in the principal legal systems of the world; and
(b) "full protection and security" requires each Party to provide the level of police protection required under customary international law.
3. A determination that there has been a breach of another provision of this Agreement or another international agreement does not establish that there has been a breach of this Article.
4. For greater certainty, the mere fact that a Party takes or fails to take an action that may be inconsistent with an investor's expectations does not constitute a breach of this Article, even if there is loss or damage to the covered investment as a result.
5. For greater certainty, the mere fact that a subsidy or grant has not been issued, renewed or maintained, or has been modified or reduced, by a Party, does not constitute a breach of this Article, even if there is loss or damage to the covered investment as a result.
6. For greater certainty, the fact that a measure breaches domestic law does not, in and of itself, establish a breach of this Article.
Article 8.8. Treatment In Case of Armed Conflict or Civil Strife
1. Notwithstanding Article 8.11.5(b), each Party shall accord to investors of the other Party and to covered investments non-discriminatory treatment with respect to measures it adopts or maintains relating to losses suffered by investments in its territory owing to armed conflict or civil strife.
2. Notwithstanding paragraph 1, if an investor of a Party, in a situation referred to in paragraph 1, suffers a loss in the territory of the other Party resulting from:
(a) requisitioning of its covered investment or part thereof by the latter's forces or authorities; or
(b) destruction of its covered investment or part thereof by the latterâs forces or authorities, which was not required by the necessity of the situation,
the latter Party shall provide the investor restitution, compensation or both, as appropriate, for that loss.
3. Paragraph 1 shall not apply to existing measures relating to subsidies or grants that would be inconsistent with Article 8.5 but for Article 8.11.5(b).
Article 8.9. Performance Requirements
1. No Party shall, in connection with the establishment, acquisition, expansion, management, conduct, operation or sale or other disposition of an investment of an investor of a Party or of a non-Party in its territory, impose or enforce any requirement, or enforce any commitment or undertaking (9):
(a) to export a given level or percentage of goods or services;
(b) to achieve a given level or percentage of domestic content;
(c) to purchase, use or accord a preference to goods produced in its territory, or to purchase goods from persons in its territory;
(d) to relate in any way the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows associated with the investment;