Article 2.11. Prudential Measures
1. Nothing in this Chapter shall be construed to prevent any Party from adopting or maintaining measures for prudential reasons such as:
(A) the protection of investors, savers, depositors, financial market participants, policyholders, policy beneficiaries, or persons with whom a financial institution has a fiduciary debt;
(B) maintaining the security, soundness, integrity or accountability of financial institutions; and
(C) ensure the integrity and stability of a Party's financial system;
2. Nothing in this Chapter shall apply to non-discriminatory measures of a general nature adopted or maintained by any public entity in pursuance of monetary policies and related credit or exchange policies. This paragraph shall not affect a Party's obligations under Article 2.10 (Transfers).
3. When such measures do not conform to the provisions of this Chapter, they shall not be used as a means of circumventing the commitments or obligations entered into by the Party under this Chapter.
Article 2.12. Investment and Measures on Health, Environment and other Regulatory Objectives In Social Matters
1. Nothing in this Chapter shall be construed to prevent a Party from adopting, maintaining or enforcing any measure that is compatible with this Chapter which it deems appropriate to ensure that investment activities in its territory are carried out Taking into account the environment, health or other regulatory objectives in social matters.
2. The Parties recognize that it is inappropriate to encourage investment by lowering the standards of their environmental, health or other social legislation. Accordingly, the Parties shall not waive or otherwise waive, render flexible or offer to waive, relax or repeal such measures as a means of encouraging the establishment, maintenance or expansion of an investment in their territory.
Article 2.13. Corporate Social Responsibility
1. The Parties recognize the importance of promoting that companies operating in their territory or subject to their jurisdiction apply policies of sustainability and social responsibility and that foster the development of the country receiving the investment.
2. Investors and their investments shall use their best efforts to comply with the following voluntary principles and standards for responsible corporate conduct consistent with the laws approved by the Host State receiving the investment:
(A) contribute to economic, social and environmental progress with a view to achieving sustainable development;
(B) to respect the internationally recognized human rights of persons involved in the activities of enterprises;
(C) stimulate local capacity building through close collaboration with the local community;
(D) promote human capital formation, in particular through the creation of employment opportunities, and by providing training to employees;
(E) refrain from seeking or accepting exemptions not contemplated in the legal or regulatory framework relating to human rights, the environment, health, safety, labor, financial incentives, or other issues;
(F) to support and defend the principles of good corporate governance, and to develop and implement good corporate governance practices;
(G) develop and implement self-disciplinary practices and effective management systems that promote a relationship of mutual trust between the companies and the societies in which they operate;
(H) promote employee awareness and compliance with company policies, through appropriate dissemination of these policies, including through training programs;
(i) to refrain from discriminatory or disciplinary measures against workers who, in good faith, report to the management or, where appropriate, to the competent public authorities on practices contrary to law or company policies;
(J) to encourage, to the extent possible, its business partners, including suppliers and contractors, to apply principles of business conduct consistent with the principles set out in this Article; and
(K) to refrain from any undue interference in local political activities.
Article 2.14.
"Measures on investment and the fight against corruption and illegality
1. Each Party shall adopt or maintain measures and efforts to prevent and combat corruption, money laundering and terrorist financing in respect of the matters covered by this Chapter and in accordance with its laws and regulations.
2. Nothing in this Chapter shall bind any Party to protect:
(A) investments made with capital or assets of illicit origin;
(B) investments in the establishment or operation of acts of corruption;
(C) investments in the establishment or operation of which were verified unlawful acts that, in accordance with its laws and regulations, have been judicially sanctioned with the loss of assets.
Section C. Institutional Governance and Prevention of Controversies
Article 2.15. Joint Committee
1. For the purposes of this Chapter, the Parties establish a Joint Committee for the management of this Chapter (hereinafter Joint Committee).
2. This Joint Committee shall be composed of Government representatives of both Parties.
3. The Joint Committee shall meet at such times, places and by such means as the Parties may agree. Meetings shall be held at least once a year, alternating the chairmanship between the Parties.
4. The Joint Committee shall have the following functions and responsibilities:
(A) supervise the implementation and enforcement of this Chapter;
(B) discuss and share opportunities for the expansion of mutual investment;
(C) coordinate the implementation of mutually agreed cooperation and facilitation programs;
(D) invite the private sector, when agreed upon by the members of the Joint Committee, in order to discuss relevant aspects within the scope of this Chapter;
(E) review matters within the scope of this Chapter submitted in accordance with Article 2.20 (Consultations and Direct Negotiations);
(F) complement the rules for the settlement of arbitral disputes between States; and
(G) evaluate any aspect of the interpretation or application of this Chapter that has been submitted by either Party.
5. The Parties may establish ad hoc working groups, within the framework of the Joint Committee, which shall meet jointly or separately from the Joint Committee.
6. The Joint Committee shall establish its own rules of procedure.
Article 2.16. Focal Point
1. Each Party shall designate a Focal Point whose primary responsibility shall be to provide assistance to investors of the other Party in its territory as provided in the following paragraphs.
2. In the case of Brazil, the Focal Point will be the Direct Investment Ombudsman located in the Chamber of Foreign Trade - CAMEX, which is a Governing Council of the Presidency of the Federative Republic of Brazil. Its main body is the Council of Ministers, which is an interministerial body.
3. In the case of Peru, the Focal Point will be the General Directorate for International Economics, Competition and Productivity Affairs of the Ministry of Economy and Finance.
4. The interested party shall send its inquiries, requests, concerns or communications regarding investment within the scope of this Chapter (consultations) to the Focal Point designated by the Party, which shall transmit the same in writing, by electronic means to the Point Focal of the other Party. Consultations should include identification, contact information of the interested party, description of the situation, and the entities or authorities involved in the subject matter of the consultations.
5. The Party's Focal Point may request additional information from the interested party, as the case may be, in order to have all the necessary elements to allow an adequate evaluation of the subject matter of the consultations, for the purpose of deriving them The competent authorities.
6. Each Party shall designate a single institutional representative of its Focal Point to respond to consultations.
7. The Focal Point will have the following functions:
(A) endeavor to comply with the guidelines of the Joint Committee and interact with the Focal Point of the other Party, in accordance with this Chapter;
(B) to provide the competent authorities with requests for guidance received from the other Party and to coordinate with those entities in order to comply with requests for procedures and activities related to investment initiatives and projects;
(C) to exchange information with the Focal Point of the other Party on investment matters within the scope of this Chapter relating to the improvement of the investment climate, such as to identify transversally the potential obstacles in the execution of investment projects, so that each Focal Point assesses, in coordination with the competent entities, possible solutions;
(D) discuss any other matter related to the bilateral investment climate within the scope of this Chapter, counting, when deemed appropriate, involving the private sector;
(E) formulate proposals for the most effective operation or achievement of the objectives of this Chapter;
(F) inform the Joint Committee of its activities and actions, when applicable.
8. The Focal Point shall determine its own rules of procedure to carry out its functions.
Article 2.17. Exchange of Information between Parties
At the request of a Party, the other Party, whenever possible, shall promptly provide, through the Joint Committee and / or its Focal Points, information that is available for dissemination and is relevant to investments, With: the investment opportunities promoted by the same Party; applicable legislation; International agreements; public politics; Statistics; Public services and infrastructure.
Article 2.18. Treatment of Protected Information
1. Each Party shall respect the level of protection of the information provided by the other Party, observing the respective domestic legislation on the subject.
2. Nothing in this Chapter shall be construed to require either Party to disclose protected information, the disclosure of which would hinder the application of the law or would otherwise be contrary to the public interest or would prejudice the Privacy or legitimate business interests. For the purposes of this paragraph, protected information includes confidential business information or privileged or protected information to be disclosed under the applicable laws of a Party.
Article 2.19. Interaction with the Private Sector
Recognizing the critical role of the private sector in investment, Parties shall disseminate general information on investment, regulatory frameworks and business opportunities in the territory of the other Party.
Article 2.20. Consultations and Direct Negotiations
1. The Focal Points shall act in co-ordination with each other and with the Joint Committee in order to seek to prevent and seek to resolve, as far as possible, investment differences arising between the Parties in the implementation of this Chapter, Chapter 1 (General Provisions and Definitions), Chapter 5 (Transparency), Chapter 8 (Exceptions) and Chapter 9 (Final Provisions).
2. Prior to commencing an arbitration proceeding, in accordance with Article 2.21 (Dispute Settlement between Parties), any dispute between the Parties shall be assessed through consultations and negotiations between the Parties and shall be considered in advance by the Committee Set. This stage of consultations and negotiations will have a maximum term of 120 days, extendable by mutual agreement between the Parties.
3. A Party may submit a specific question and convene a meeting of the Joint Committee:
(A) to initiate the proceeding, the Party shall submit its request in writing to the Joint Committee, specifying the name of the investor concerned and the issues identified by the investor;
(B) The Joint Committee shall evaluate the relevant information on the case that is presented and prepare the respective report, which shall include:
(i) identification of the Party;
(ii) identification of affected investors, as filed by the Party;
(iii) description of the measure being consulted; and
(iv) conclusions of the dialogue between Parties
(C) In order to facilitate the search for a solution, the Parties shall invite to meetings of the Joint Committee, where they deem it necessary, to:
(i) representatives of the investors involved;
(ii) representatives of the governmental entities involved in the measure or situation under consultation.
(D) after the deadline established by the Parties in accordance with paragraph 2, the Joint Committee shall submit its report.
(E) The Joint Committee may convene special meetings to review matters submitted to it.
(F) in the event that the Joint Committee does not meet within a reasonable time, in accordance with paragraph 2, the dispute may be submitted to arbitration by one of the Parties, in accordance with Article 2.21 (Dispute Settlement between Parties).
Article 2.21. Settlement of Disputes between the Parties
1. Either Party may resort to arbitration mechanisms between States, provided they have exhausted the procedure provided for in Article 2.20.3 (Consultations and Direct Negotiations) without the dispute being resolved.
2. The purpose of arbitration between States is to bring into conformity with the Chapter the measure declared incompatible with the Chapter by the arbitral award.
3. Article 2.12 (Investment and Measures on Health, Environment and Other Regulatory Objectives in Social Matters), 2.13 (Corporate Social Responsibility) and Article 2.14 (Measures on Investment and Fight against Corruption and Illegality) may not be subject to arbitration.
4. No claim may be submitted to the mechanism provided for in this Article if a period of more than five years has elapsed from the date on which the investor first had or should have known for the first time of an alleged violation of this Chapter.
5. The arbitral tribunal shall be constituted in accordance with paragraph 6 of this Article. However, the Parties may jointly decide to refer the dispute to a permanent arbitration institution for the settlement of disputes between States relating to investments.
6. In the case of the establishment of an arbitral tribunal for each dispute, each Party shall designate a member of the arbitral tribunal within two months after receiving the request for arbitration through diplomatic channels. The two members shall designate a national of a third State who, upon approval by both Parties, shall be designated as the President of the arbitral tribunal. The President shall be appointed within two months after the date of appointment of the other two members of the arbitral tribunal.
7. If, within the periods specified in paragraph 6, the necessary appointments have not been made, either Party may invite the President of the International Court of Justice to make the necessary appointments. If the President of the International Court of Justice is a national of one of the Parties or is prevented from exercising that function, the Vice President shall be invited to make the necessary appointments. If the Vice-President is a national of a Party or is prevented from exercising that function, the member of the International Court of Justice who is not a national of one of the Parties, shall be invited to make the necessary appointments.
8. The Arbitrators shall:
(A) have the necessary experience or expertise in public international law, international investment or international trade rules, or in the resolution of disputes arising in connection with international investment agreements or international trade agreements;
(B) be independent and not be bound by any of the Parties or other arbitrators, directly or indirectly, or be instructed by the Parties, and
(C) comply with the "Standards of Conduct for the Application of the Understanding on Rules and Procedures Governing the Settlement of Disputes" of the World Trade Organization (WTO / DSB / RC / 1, of 11 December Of 1996), as applicable, or any other standard of conduct established by the Joint Committee.
9. When a Party claims that a dispute involves measures relating to financial institutions or to investors or investments of such investors in financial institutions and provided that:
(A) the Parties agree, arbitrators, in addition to the criteria set forth in paragraph 8, shall have experience or expertise in law or practice of financial services, which may include regulation of financial institutions; or
(B) the Parties disagree:
(i) each of the Parties to the dispute may select the arbitrators having the qualification profile set forth in subparagraph (a), and
(ii) if the respondent has invoked Article 2.10 (Transfers), the President of the Tribunal shall be the arbitrator who meets the qualifications established in subparagraph (a).
10. The arbitral tribunal shall determine its own procedure. The arbitral tribunal shall take its decision by majority vote. Such a decision shall be binding on both Parties. Unless the parties otherwise agree, the decision in the arbitral tribunal award shall be rendered within six months of the appointment of the President in accordance with paragraphs 6 and 7.
Section D. Agenda for Greater Cooperation and Facilitation of Investments
Article 2.22. Agenda for Increased Cooperation and Facilitation of Investments
1. The Joint Committee will develop and discuss an Agenda for Enhanced Cooperation and Investment Facilitation on issues relevant to improving the climate of bilateral investment. The topics to be addressed initially and their objectives will be decided at the first meeting of the Joint Committee.
2. The agendas shall be discussed between the competent governmental authorities of both Parties. The Joint Committee may invite, where applicable, additional governmental authorities from both Parties for agenda discussions.
3. The Parties shall submit to the Joint Committee the names of the governing bodies and their official representatives involved in these negotiations.
Section E. Final Provisions
Article 2.23. Final Provisions
1. Neither the Joint Committee nor the National Focal Points or the Ombudsman shall replace or impair in any way any other agreement or diplomatic channels existing between the Parties.
2. The Parties shall consult, in any way they agree, in order to review the implementation of this Chapter, the extension of its scope and the deepening of the commitments assumed.
Chapter 3. Trade In Services
Article 3.1. Definitions
For the purposes of this Chapter:
(A) trade in services means the provision of a service:
(i) from the territory of one Party to the territory of the other Party
(ii) in the territory of a Party by a person of that Party to a person of the other Party;
(iii) by a service supplier of one Party through commercial presence in the territory of the other Party; or
(iv) by a national of one Party in the territory of the other Party.
(B) a legal person of a Party means a legal person who:
(i) is constituted or otherwise organized under the law of a Party; or
(ii) in the case of the provision of a service by commercial presence in the territory of the other Party, is owned, or is under the control or under a significant degree of influence of:
(A) nationals of a Party; or
(B) legal entities of a Party as defined in sub-paragraph (i)
(C) commercial presence means any type of commercial or professional establishment, through, among other means, of:
(i) the constitution, acquisition or maintenance of a legal person, or
(ii) The creation or maintenance of a branch or representative office, within the territory of a Party for the purpose of providing a service;
(D) A service provider of a Party means any person of a Party providing or seeking to provide a service. Where the service is not provided by a legal person directly but through other forms of commercial presence, eg a branch or representative office, the service provider (ie, to the legal person), through that presence, the treatment granted to service providers under this Chapter. Such treatment shall be granted to the presence through which the service is provided, without it being necessary to grant it to the other party of the provider located outside the territory in which the service is provided;
(E) sector of a service means:
(i) with reference to a specific commitment, one or more sub-sectors of that service, or all of them, as specified in the Schedule of Specific Commitments of a Party set out in Annex I;
(ii) otherwise, the entire service sector, including all of its subsectors; and
(F) provision of a service includes the production, distribution, marketing, sale and provision of a service.
Article 3.2. Scope of Application
1. This Chapter applies to measures adopted or maintained by a Party which affect trade in services provided by service suppliers of the other Party. Such measures include measures affecting:
(A) the purchase, payment or use of a service;
(B) access to services offered to the general public by the prescription of the Parties, and the use thereof, in connection with the provision of a service;
(C) the presence, including commercial presence, of persons of one Party in the territory of the other Party for the provision of a service.
2. For the purposes of this Chapter:
(A) "measures taken or maintained by a Party" means measures taken or maintained by:
(i) central, regional or local governments and authorities; and
(ii) non-governmental institutions in the exercise of powers delegated by governments or central, regional or local authorities.
3. This Chapter does not apply to:
(A) services provided in the exercise of governmental authority. A "service rendered in the exercise of governmental authority" means any service which is not provided on a commercial basis or in competition with one or more service providers;
(B) air services, (1) including national and international scheduled and non-scheduled air transport services, and related services in support of air services, except:
(i) aircraft repair and maintenance services while the aircraft is out of service;
(ii) the sale and marketing of air transport services; and
(iii) computerized reservation system (SRI) services;
(C) public procurement; and
(D) subsidies or grants made by a Party, including government-supported loans, guarantees and insurance, with the exception of Article 3.13 (Subsidies).
4. This Chapter does not apply to measures affecting nationals of one Party seeking access to the labor market of the other Party, or measures relating to citizenship, nationality, permanent residence, or employment on a permanent basis.