1. In addition to the provisions of Article 17-02 (Publication), each Party shall ensure that any measure it adopts on matters related to this Chapter is officially published or otherwise made known in a timely manner to the addressees thereof by some other written means.
2. The regulatory authorities of each Party shall make available the requirements for completing an application for the supply of financial services.
3. At the request of the applicant, the regulatory authority shall inform the applicant of the status of its application. Where that authority requires additional information from the applicant, it shall notify the applicant without undue delay.
4. Each regulatory authority shall, within a period not exceeding 180 days, issue an administrative measure with respect to a complete application related to the supply of a financial service, submitted by an investor in a financial institution, by a financial institution or by a cross-border financial service supplier of the other Party. The authority shall promptly notify the person concerned of the measure. The application shall not be considered complete until all relevant hearings have been held and all necessary information has been received. Where it is not practicable to issue a determination within 180 days, the regulatory authority shall notify the interested party without undue delay and thereafter endeavor to issue the determination within a reasonable period of time.
5. Nothing in this Chapter requires a Party to disclose or allow access to:
(a) information relating to the financial affairs and accounts of individual customers of financial institutions or cross-border financial service providers; nor.
(b) any confidential information the disclosure of which would contravene law enforcement or otherwise be contrary to the public interest or would prejudice the legitimate commercial interests of particular enterprises.
6. Each Party shall maintain or establish one or more consultation centers, no later than 120 days after entry into force of this Agreement, to respond in writing as soon as possible to all reasonable inquiries from interested persons regarding measures of general application to be adopted by that Party relating to this Chapter.
Article 12-11. Financial Services Working Group.
1. The Parties establish the Financial Services Working Group composed of officials of the competent authorities identified in the Annex to this Article.
2. The Working Group shall:
(a) oversee the implementation of this Chapter and its further development;
(b) consider issues relating to financial services that are submitted to it by a Party; (c) participate in dispute settlement procedures in accordance with Article 12-19; and
(d) facilitate the exchange of information between supervisory authorities and cooperate on prudential regulatory advice, seeking harmonization of regulatory frameworks as well as other policies, where appropriate.
3. The Working Group shall meet at least once a year to evaluate the implementation of this chapter.
Article 12-12. Consultations.
1. Any Party may request consultations with the other Party with respect to any matter related to this Agreement affecting financial services. The other Party shall give favorable consideration to such a request. The consulting Party shall make the results of its consultations known to the Working Group at its meetings.
2. Officials of the competent authorities listed in the Annex to Article 12-11 shall participate in the consultations provided for in this Article.
3. A Party may request that the regulatory authorities of the other Party participate in consultations held pursuant to this Article to discuss measures of general application of that other Party that may affect the operations of financial institutions or cross-border financial service providers in the territory of the Party requesting the consultation.
4. Nothing in this Article shall be construed to require regulatory authorities involved in consultations under paragraph 3 to disclose information or to act in a manner that would interfere with particular regulatory, supervisory, administrative or enforcement matters.
5. Where, for supervisory purposes, a Party needs information on a financial institution in the territory of the other Party or on cross-border financial service suppliers in the territory of the other Party, the Party may approach the responsible regulatory authority in the territory of that other Party to request the information.
Article 12-13. New Financial Services and Data Processing.
1. Each Party shall permit, in like circumstances, a financial institution of the other Party to provide any new financial services of a type similar to those that that Party permits its financial institutions to provide under its law. The Party may decide the institutional and legal modality through which such service is offered and may require authorization for the provision of such service. When such authorization is required, the respective resolution shall be issued within a reasonable period of time and may only be denied for prudential reasons.
2. Each Party shall permit financial institutions of the other Party to transfer, for processing, information into or out of the territory of the Party, using any of the means authorized therein, when necessary to carry out the ordinary business activities of those institutions.
Article 12-14. Senior Management and Boards of Directors.
1. No Party may require financial institutions of the other Party to employ personnel of a particular nationality for senior corporate management or other key positions.
2. No Party may require that the board of directors of a financial institution of the other Party be composed of more than a simple majority of nationals of that Party, residents of its territory, or a combination of both.
Article 12-15. Reservations and Specific Commitments.
1. Articles 12-04, to 12-07, 12-13 and 12-14 do not apply to:
(a) any non-conforming measure that each Party includes in the Annex to this Article within one year of the entry into force of this Agreement;
(b) the continuation or prompt renewal of any non-conforming measure referred to in subparagraph (a); or
(c) any modification to a non-conforming measure referred to in subparagraph (a), so long as that modification does not reduce the measure's degree of conformity with Articles 12-04, 12-07, 12-13 and 12- 14 as in effect immediately prior to the modification.
2. Where a Party has entered in Part Three (Trade in Services) and Part Six (Investment) a reservation relating to the right of establishment, cross-border trade in services, national treatment, most-favored-nation treatment, new financial services and data processing, and senior management and boards of directors, the reservation shall be deemed to be made to Articles 12-04, 12-07, 12-13 and 12-14, as the case may be, to the extent that the measure, sector, subsector or activity specified in the reservation is covered by this Chapter.
Article 12-16. Denial of Benefits.
A Party may deny, in whole or in part, benefits under this Chapter to a financial service supplier of the other Party or a cross-border financial service supplier of the other Party, after notification and consultations in accordance with Articles 12-10 and 12-12, where the Party determines that the service is being supplied by an enterprise that does not carry on substantial business activities in the territory of any Party or is owned or controlled by persons of a non-Party.
Article 12-17. Transfers.
1. Each Party shall permit all transfers relating to an investment in its territory of an investor of the other Party to be made freely and without delay. Such transfers include:
(a) profits, dividends, interest, capital gains, royalty payments, management fees, technical assistance and other charges, profits in kind and other amounts derived from the investment;
(b) proceeds from the sale or liquidation, in whole or in part, of the investment;
(c) payments made pursuant to a contract to which an investor or its investment is a party;
(d) payments made pursuant to Article 15-09; and
(e) payments resulting from a dispute settlement proceeding between a Party and an investor of the other Party under this Chapter and Section B of Chapter XV (Investment).
2. Each Party shall permit transfers to be made in freely convertible currency at the market rate of exchange prevailing on the date of transfer for spot transactions in the currency to be transferred, subject to Article 12- 18.
3. No Party may require its investors to make transfers of their income, earnings, or profits or other amounts derived from or attributable to investments made in the territory of the other Party.
4. Notwithstanding paragraphs 1 and 2, each Party may prevent transfers, through the equitable and non- discriminatory application of its laws, in the following cases:
(a) bankruptcy, insolvency, or protection of creditors' rights;
(b) issuance, trading, and operations of securities;
(c) criminal or administrative offenses;
(d) reports of transfers of currency or other monetary instruments; or
(e) security for the enforcement of judgments or awards in an adversary proceeding.
5. Paragraph 3 shall not be construed to prevent a Party, through the application of its law in an equitable, non-discriminatory and good faith manner, from imposing any measure related to subparagraphs (a) and (e) of paragraph 4.
Article 12-18. Balance of Payments and Safeguard.
1. Each Party may adopt or maintain a measure to suspend, for a reasonable period of time, all or only some of the benefits contained in this Chapter and Article 15-08 (Transfers), when:
(a) the application of any provision of this Chapter or Article 15-08 (Transfers) would result in a serious economic and financial disruption in the territory of the Party that cannot be adequately addressed by any alternative measure; or
(b) the balance of payments of a Party, including the state of its monetary reserves, is seriously threatened or faces serious difficulties.
2. A Party that suspends or intends to suspend the benefits of this Chapter shall notify the other Party as soon as possible:
(a) what the serious economic and financial disruption caused by the application of this Chapter or Article 15-08 (Transfers), as appropriate, consists of, the nature and extent of the difficulties threatening or facing its balance of payments;
(b) the economic and foreign trade situation of the Party;
(c) the alternative measures available to it to correct the problem; and
(d) the economic policies it adopts to deal with the problems referred to in paragraph 1, as well as the direct relationship between those policies and the solution thereof.
3. The measure adopted or maintained by the Party shall, at all times:
(a) shall avoid unnecessary damage to the economic, commercial and financial interests of the other Party;
(b) shall not impose greater burdens than those necessary to address the difficulties giving rise to the adoption or maintenance of the measure;
(c) shall be temporary, liberalizing progressively as the balance of payments, or the economic and financial situation of the Party, as the case may be, improves;
(d) shall be applied in such a way as to avoid discrimination between the Parties at all times; and
(e) shall seek to be consistent with internationally accepted standards.
4. Any Party that adopts a measure to suspend benefits contained in this Chapter or in Article 15-08 (Transfers) shall inform the other Party of the evolution of the events that gave rise to the adoption of the measure.
5. For purposes of this Article, reasonable time means the time during which the events described in paragraph 1 persist.
Article 12-19. Settlement of Disputes between the Parties.
1. As amended by this Article, Chapter XIX (Dispute Settlement) applies to the settlement of disputes arising between the Parties with respect to this Chapter.
2. The Financial Services Working Group shall establish by consensus a roster of up to ten individuals, including up to five individuals from each Party, who have the necessary skills and qualifications to act as arbitrators in disputes relating to this Chapter. The members of this roster shall, in addition to meeting the requirements set forth in Chapter XIX (Dispute Settlement), have specialized knowledge in financial matters, extensive experience derived from the exercise of responsibilities in the financial sector or in its regulation.
3. For the purposes of the constitution of the arbitral tribunal, the list referred to in paragraph 2 shall be used, except that the disputing Parties may agree that individuals not included in that list may form part of the arbitral tribunal, provided that they meet the requirements set forth in paragraph 2.
4. In any dispute in which the arbitral tribunal has found a measure to be inconsistent with the obligations of this Chapter where the suspension of benefits referred to in Chapter XIX (Dispute Settlement) is appropriate and the measure affects:
(a) only the financial services sector, the complaining Party may suspend benefits only in that sector;
(b) the financial services sector and any other sector, the complaining Party may suspend benefits in the financial services sector that have an effect equivalent to the effect of that measure on the financial services sector; or
(c) any sector other than the financial services sector, the complaining Party may not suspend benefits in the financial services sector.
Article 12-20. Financial Services Investment Dispute.
1. Section B of Chapter XV (Investment) is incorporated into and made an integral part of this Chapter.
2. Where an investor of the other Party, pursuant to Article 15-19 (Claim by Investor of a Party on its own account or on behalf of an enterprise) and under Section B of Chapter XV (Investment) submits a dispute against a Party to arbitration, and that respondent Party invokes Article 12-09 at its own request, the tribunal shall refer the matter in writing to the Working Group for decision. The tribunal may not proceed until it has received a decision or report under the terms of this Article.
3. In referring the matter under paragraph 1, the Working Group shall decide whether and to what extent Article 12-09 is a valid defense to the investor's claim. The Working Group shall transmit a copy of its decision to the arbitral tribunal and to the Commission. That decision shall be binding on the tribunal.
4. Where the Working Group has not reached a decision within 60 days of receiving the referral under paragraph 1, the disputing Party or the Party of the disputing investor may request that an arbitral panel be established in accordance with Article 15-26 (Consent to the Appointment of Arbitrators). The panel shall be constituted in accordance with Article 12-19 and shall send to the Working Group and the arbitral tribunal its final determination, which shall be binding on the tribunal.
5. Where no request for the establishment of a panel under paragraph 3 has been made within ten days after the expiration of the 60-day period referred to in that paragraph, the tribunal may proceed to decide the case.
Annex to Article 12-11. Competent Authorities
1. The Financial Services Working Group shall be composed of such officials as it may designate:
(a) for the case of Bolivia, the Superintendencia de Bancos e Instituciones Financieras, on a transitory basis, as long as Bolivia does not notify a different authority; and
(b) in the case of Mexico, the Ministry of Finance and Public Credit.
2. The principal representative of each Party shall be the one designated by such authority for such purpose.
Chapter XIII. Standardization Measures
Article 13-01. Definitions.
1. For the purposes of this chapter, the terms presented in the sixth edition of ISO/IEC 2: 1991, "General terms and their definitions in relation to standardization and related activities", shall have the same meaning when used in this chapter, unless they are defined differently here.
2. For the purposes of this chapter, the following definitions shall apply:
hazardous waste: any material generated in the processes of extraction, benefit, transformation, production, consumption, use, control or treatment, whose quality does not allow it to be used again in the process that generated it and which, due to its corrosive, toxic, poisonous, reactive, explosive, flammable, infectious biological, infectious or irritating characteristics, represents a danger to health or the environment;
risk assessment: the evaluation of the potential harm to human, animal or plant health or safety, or the environment that could be caused by any good or service traded between the Parties;
to make compatible: to bring to the same level different standardization measures, but with the same scope, approved by different standardization bodies, so that they are identical, equivalent or have the effect of allowing goods and services to be used interchangeably or for the same purpose, so as to allow goods and services to be traded between the Parties;
standardization measures: standards, technical regulations or conformity assessment procedures;
standard: a document approved by a recognized body that provides, for common and repeated use, rules, guidelines or characteristics for related goods or processes and production methods, or for related services or methods of operation, and compliance with which is not mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labeling requirements applicable to a related good, service, process or related production or operating method;
international standard: a standardization measure, or other rule or recommendation, adopted by an international standardizing body and made available to the public;
legitimate objectives: inter alia, the assurance of safety or the protection of human, animal, plant or
environmental life or health, or the prevention of practices that may mislead consumers, including matters relating to the identification of goods or services, considering among other things, where appropriate, fundamental climatic, geographical, technological, infrastructural or scientific justification factors;
standardizing body: a body whose standardization activities are recognized;
international standardizing body: a standardizing body open to participation by the relevant bodies of at least all parties to the GATT TBT Agreement, including the International Organization for Standardization (ISO), the International Electrotechnical Commission (IEC), the Codex Alimentarius Commission, the World Health Organization (WHO) and its subsidiary bodies, or any other body designated by the Parties;
approval procedure: the registration, notification or any other mandatory administrative process for obtaining a permit for a good or service to be placed on the market or used for defined purposes or under defined conditions;
conformity assessment procedure: any procedure used, directly or indirectly, to determine whether the relevant requirements established by technical regulations or standards are met, including sampling, testing, inspection, evaluation, assessment, verification, assurance of conformity, accreditation, certification, registration or approval, used for those purposes, but does not mean an approval procedure;
administrative denial: actions taken by an organ of the public administration of the importing Party, in the exercise of its powers, to prevent the entry into its territory of a shipment or the provision of a service, for technical reasons;
technical regulation: a document that establishes the characteristics of goods or their related processes and methods of production, or the characteristics of services or their related methods of operation, including the applicable administrative provisions, and whose observance is mandatory. It may also include or deal exclusively with terminology, symbols, packaging or labeling requirements applicable to a good, service, process or related production or operation method;
service: any service within the scope of this Agreement, except financial services;
hazardous substances: those that threaten human, animal, plant or environmental health or integrity, and that are identified as such by national and international organizations.
Article 13-02. Scope of Application.
1. This Chapter applies to the standardization and metrology measures of the Parties, as well as measures related thereto, that may affect, directly or indirectly, trade in goods or services between the Parties.
2. This Chapter does not apply to the animal and plant health measures referred to in Section B of Chapter IV (Agricultural Sector and Animal and Plant Health Measures).
Article 13-03. Extension of Obligations.
Each Party shall comply with the provisions of this Chapter and shall take the necessary measures to ensure compliance by state, departmental and local governments, and shall take such measures in that regard as may be available to it, with respect to non-governmental standardizing bodies in its territory.
Article 13-04. Confirmation of International Rights and Obligations.
The Parties confirm their existing rights and obligations regarding standardization measures under the GATT and other international treaties to which the Parties are parties, including treaties on health, environment and conservation.
Article 13-05. Basic Obligations and Rights.
1. Notwithstanding any other provision of this Chapter, and in accordance with paragraph 3 of Article 13-07, each Party may establish such level of protection as it considers appropriate to achieve its legitimate objectives.
2. Each Party may develop, adopt, implement and maintain standardization measures to ensure its level of protection of human, animal or plant life or health, the environment or for the prevention of practices that may mislead the consumer, as well as measures to ensure the implementation and enforcement of such standardization measures, including relevant approval procedures.
3. No Party shall develop, adopt, maintain or apply any standardizing measure that has the purpose or effect of creating unnecessary obstacles to trade between them. To this end, each Party shall ensure that standardizing measures are no more trade-restrictive than necessary for the achievement of its legitimate objectives, taking into account technical and economic possibilities and the risks that non-compliance would create.
4. With respect to its standards-related measures, each Party shall accord to goods and service suppliers of the other Party national treatment and treatment no less favorable than that it accords to like goods and service suppliers of any other country.
Article 13-06. Use of International Standards.
1. Each Party shall use, as a basis for the development, elaboration or application of its standards, existing or imminently adopted international standards, except where such international standards are not an effective or appropriate means of achieving its legitimate objectives, due to fundamental factors of a climatic, geographical, technological or infrastructural nature, among others.
2. A Party's standardization measure that conforms to an international standard shall be presumed to be consistent with paragraphs 3 and 4 of article 13-05.
3. In pursuing its legitimate objectives, each Party may adopt, maintain or apply any standards-related measure that results in a higher level of protection than would have been achieved if the measure were based on an international standard due to, inter alia, fundamental climatic, geographical, technological or infrastructural factors.
Article 13-07. Risk Assessment.
1. Each Party may conduct risk assessments in its territory provided that this does not have the purpose or effect of creating unnecessary obstacles to trade between them. In doing so, it shall take into consideration risk assessment methods developed by international organizations and shall ensure that its standardization measures are based on assessments of risk to human, animal, plant and environmental health and safety.
2. In conducting a risk assessment, the Party conducting the risk assessment shall take into consideration any relevant scientific evidence, available technical information, intended end use, processes or methods of production, operation, inspection, quality, sampling or testing, or environmental conditions.
3. Having established the level of protection it considers appropriate in accordance with paragraph 1 of Article 13-05, each Party shall, in carrying out a risk assessment, avoid arbitrary or unjustifiable distinctions between similar goods and services, if such distinctions:
(a) have the effect of arbitrarily or unjustifiably discriminating against goods or service suppliers of the other Party;
(b) constitute a disguised restriction on trade between the Parties; or
(c) discriminate between like goods or services for the same use under the same conditions that pose the same level of risk and confer similar benefits.
4. Where the Party conducting a risk assessment concludes that the scientific evidence or other available information is insufficient to complete the assessment, it may adopt a technical regulation on a provisional basis based on the relevant available information. Once it has been presented with sufficient information to complete the risk evaluation, the Party shall complete its evaluation as soon as possible, and shall review and, where appropriate, reconsider the provisional technical regulation in the light of that evaluation.
Article 13-08. Compatibility and Equivalence.
1. The Parties recognize the central role that standardization measures play in the promotion and protection of legitimate objectives and shall work together to strengthen the level of safety and protection of human, animal and plant life and health, the environment, and the prevention of practices that may mislead consumers.
2. Without prejudice to their rights under this Chapter and taking into account international standardization activities, the Parties shall make their respective standardization measures compatible, to the greatest extent possible, without reducing the level of safety or protection of human, animal or plant life or health, the environment or consumers.
3. At the request of a Party, the other Party shall take such reasonable measures as are within its power to promote the compatibility of its specific standardization measures with the standardization measures of the other Party, taking into account international procedures and activities in this field.
4. Each Party shall accept a technical regulation adopted by the other Party as equivalent to its own when, in cooperation with the other Party, the exporting Party demonstrates to the satisfaction of the importing Party that its technical regulation adequately fulfills the legitimate objectives of the importing Party.
5. On request of the exporting Party, the importing Party shall communicate in writing to the exporting Party its reasons for not having accepted a technical regulation under paragraph 4.
6. To the extent possible, each Party shall accept the results of conformity assessment procedures carried out in the territory of the other Party, even if those procedures differ from its own, provided that they offer satisfactory assurance, equivalent to that offered by procedures carried out or to be carried out in its territory, the result of which it accepts, that the relevant good or service complies with the applicable technical regulations or standards that are developed or maintained in the territory of that Party.
7. Prior to acceptance of the results of a conformity assessment procedure in accordance with paragraph 6, in order to strengthen confidence in the continued integrity of each Party's conformity assessment results, the Parties may consult on matters such as the technical capability of conformity assessment bodies, taking into consideration verified compliance with relevant international standards through that means of accreditation.
Article 13-09. Conformity Assessment.
1. Recognizing the existence of differences in conformity assessment procedures in their respective territories, the Parties shall, to the greatest extent possible, make compatible their respective conformity assessment procedures in accordance with the provisions of this Chapter.
2. If mutually beneficial, each Party shall, on a reciprocal basis, accredit, approve, license or recognize conformity assessment bodies in the territory of the other Party on terms no less favorable than those granted to such bodies in its territory.
3. With respect to its conformity assessment procedures, each Party shall be obliged to:
(a) not to adopt or maintain more stringent conformity assessment procedures, or to apply them more strictly than necessary, to satisfy itself that the good or service conforms to the applicable technical regulations or standards, taking into consideration the risks that non-conformity might create;
(b) initiate and complete this procedure as expeditiously as possible;
(c) establish a non-discriminatory order for the processing of requests;
(d) to accord to goods and services originating in the other Party national treatment and treatment no less favorable than that it accords to its like goods and services or to goods or services of any other country;
(e) publish the normal duration of each of these procedures or communicate, at the request of the applicant, the approximate duration of the procedure;
(f) ensure that the competent national body:
(i) upon receipt of an application, promptly examines the completeness of the documentation and informs the applicant, accurately and completely, of any deficiencies;