(i) to protect human, animal or plant life or health, which the Parties understand to include environmental measures necessary to protect human, animal or plant life or health,
(ii) to ensure compliance with a laws or regulation that are not inconsistent with this Agreement, or
(iii) for the conservation of living or non-living exhaustible natural resources,
(b) provided that the measure referred to in sub paragraph (a) is not:
(i) applied in a manner that constitutes arbitrary or unjustifiable discrimination between investments or between investors, or
(ii) a disguised restriction on international trade or investment.
Article 23.03. National Security
This Agreement does not:
(a) require a Party to furnish or allow access to information if that Party determines that the disclosure of this information would be contrary to its essential security interests;
(b) prevent a Party from taking an action that it considers necessary to protect its essential security interests:
(i) relating to the traffic in arms, ammunition and implements of war and to such traffic and transactions in other goods, materials, services and technology undertaken directly or indirectly for the purpose of supplying a military or other security establishment,
(ii) taken in time of war or other emergency in international relations, or
(iii) relating to the implementation of national policies or international agreements respecting the non-proliferation of nuclear weapons or other nuclear explosive devices; or
(c) prevent a Party from fulfilling its obligations under the Charter of the United Nations for the maintenance of international peace and security.
Article 23.04. Taxation
1. Except as set out in this Article, this Agreement does not apply to a taxation measure.
2. This Agreement does not affect the rights and obligations of a Party under a tax convention. In the event of inconsistency between this Agreement and a tax convention, that convention prevails.
3. Where a provision with respect to a taxation measure under this Agreement is similar to a provision under a tax convention, the competent authorities identified in the tax convention shall use the procedural provisions of that tax convention to resolve an issue that may arise under this Agreement.
4. Notwithstanding paragraphs 2 and 3:
(a) Article 2.03 (National Treatment and Market Access for Goods - National Treatment) and the provisions of this Agreement necessary to give effect to that Article apply to a taxation measure to the same extent as Article II of the GATT 1994; and
(b) Article 2.10 (National Treatment and Market Access for Goods - Export Taxes) applies to a taxation measure.
5. Subject to paragraphs 2, 3 and 6:
(a) Article 10.03 (Cross-Border Trade in Services - National Treatment) and Article 12.03 (Financial Services â National Treatment) apply to a taxation measure on income, capital gains or on the taxable capital of corporations that relate to the purchase or consumption of particular services; and
(b) Articles 9.04 and 9.05 (Investment – National Treatment and MostFavoured-Nation Treatment), Articles 10.03 and 10.04 (Cross-Border Trade in Services – National Treatment and Most-Favoured-Nation Treatment) and Articles 12.03 and 12.04 (Financial Services – National Treatment and Most-Favoured-Nation Treatment) apply to a taxation measure, other than one on income, capital gains or on the taxable capital of corporations.
6. Paragraph 5 does not:
(a) impose a most-favoured-nation obligation with respect to an advantage accorded by a Party pursuant to a tax convention;
(b) impose on a Party an obligation making the receipt, or continued receipt, of an advantage relating to the contributions to, or income of, pension trusts or pension plans conditional on a requirement that the Party maintain continuous jurisdiction over the pension trust or pension plan;
(c) impose on a Party an obligation making the receipt, or continued receipt, of an advantage relating to the purchase or consumption of a particular service conditional on a requirement that the service be provided in its territory;
(d) apply to a non-conforming provision of an existing taxation measure;
(e) apply to the continuation or prompt renewal of a non-conforming provision of an existing taxation measure;
(f) apply to an amendment to a non-conforming provision of an existing taxation measure provided that the amendment does not decrease its conformity, as it existed immediately before the amendment, with the articles referred to in Paragraph 5; or
(g) apply to a new taxation measure that is aimed at ensuring the equitable and effective imposition or collection of taxes (including, for greater certainty, a measure that is taken by a Party in order to ensure compliance with the Partyâs taxation system or to prevent the avoidance or evasion of taxes) and that does not arbitrarily discriminate between persons, goods or services of the Parties.
7. Subject to paragraphs 2 and 3, and without prejudice to the rights and obligations of the Parties under paragraph 4, Article 9.07 (Investment - Performance Requirements) applies to a taxation measure.
8. Notwithstanding paragraphs 2 and 3, Article 9.11 (Investment - Expropriation) applies to a taxation measure, but an investor may not invoke that Article as the basis for a claim under Articles 9.20 (Investment - Claim by an Investor of a Party on Its Own Behalf) or 9.21 (investment - Claim by an Investor of a Party on Behalf of an Enterprise), where the designated authorities of the Parties have determined under this paragraph that a taxation measure is not an expropriation. The investor shall refer the issue of whether a measure is not an expropriation for a determination to the designated authorities of the Parties at the time that it gives notice under subparagraph 2(c) of Article 9.22 (Investment - Conditions Precedent to Submission of a Claim to Arbitration). If, within a period of six months from the date of this referral, the designated authorities do not agree to consider the issue or, having agreed to consider it, fail to agree that the measure is not an expropriation, the investor may submit its claim to arbitration under Article 9.23 (Investment - Submission of a Claim to Arbitration).
9. A claim by:
(a) an investor of a Party that a tax measure of the other Party breaches an agreement between a central government authority of that Party and the investor concerning an investment, or
(b) an investor of a Party, on behalf of an enterprise of the other Party that is a juridical person that the investor owns or controls directly or indirectly, that a tax measure of the other Party breaches an agreement between a central government authority of the other Party and that enterprise,
may be submitted to arbitration under Section C of Chapter Nine (Settlement of Disputes between an Investor and the Host Party) unless the designated authorities of the Parties, within six months of being notified by the investor of its intention to submit the claim to arbitration, jointly determine that the measure does not contravene such agreement. The investor shall refer the issue of whether a taxation measure does not contravene such agreement for a determination to the designated authorities of the Parties at the same time that it gives notice under Article 9.22 (Investment - Conditions Precedent to Submission of a Claim to Arbitration).
10. In order to give effect to paragraphs 1 to 3:
(a) If an issue arises as to whether a measure of a Party is a taxation measure in a dispute between the Parties, either Party may refer the issue to the designated authorities of the Parties. The designated authorities shall decide the issue of whether the measure is a taxation measure, and their decision shall bind a panel established under Article 22.07 (Dispute Settlement - Establishment of a Panel) for the dispute. If a Party has referred the issue to the designated authorities and they have not decided the issue within six months of the referral, the panel shall decide the issue;
(b) If an issue arises as to whether a measure is a taxation measure in connection with a claim by an investor of a Party, the Party that has received notice of intention to submit a claim or against which an investor of a Party has submitted a claim may refer the issue to the designated authorities of the Parties. The designated authorities shall decide whether the measure is a taxation measure, and their decision shall bind a Tribunal with jurisdiction over the claim. A Tribunal seized of a claim in which the same issue arises may not proceed while the designated authorities are considering the issue. If a Party has referred the issue to the designated authorities and they have not decided the issue within six months of the teferral, the Tribunal shall decide the issue;
(c) If an issue arises as to whether a tax convention prevails over this Agreement in a dispute between the Parties, a Party to the dispute may refer the issue to the designated authorities of the Parties. The designated authorities shall consider the issue and decide whether the tax convention prevails. If within six months of the referral of the issue to the designated authorities, they decide with respect to the measure that gives rise to the issue that the tax convention prevails, procedures concerning that measure may not be initiated under Article 22.07 (Dispute Settlement - Establishment of a Panel). Procedures concerning the measure may not be initiated while the designated authorities are considering the issue. If a Party has referred the issue to the designated authorities and they have not decided the issue within six months of the referral, the panel shall decide the issue;
(d) If an issue arises as to whether a tax convention prevails over this Agreement prior to the submission of a claim by an investor of a Party, the Party that has received notice of intention to submit a claim may refer the issue to the designated authorities of the Parties. The designated authorities shall consider the issue and decide whether the tax convention prevails. If within six months of the referral of the issue to the designated authorities, they decide with respect to the measure that gives rise to the issue that the tax convention prevails, a claim concerning that measure may not be submitted under Article 9.23 (Investment - Submission of a Claim to Arbitration).A claim concerning the measure may not be submitted while the designated authorities are considering the issue. An investor of a Party that fails to identify a taxation measure in its notice of intention to submit a claim may not submit a claim concerning that measure under Article 9.23 (Investment - Submission of a Claim to Arbitration). If a Party has referred the issue to the designated authorities and they have not decided the issue within six months of the referral, the panel shall decide the issue.
11.If an investor invokes Article 9.11 (Investment - Expropriation) as the basis for a claim under Article 9.20 (Investment - Claim by an Investor of a Party on Its Own Behalf) or 9.21 (investment - Claim by an Investor of a Party on Behalf of an Enterprise), the designated authorities shall make a determination under paragraph 8 of whether a measure is an expropriation concurrently with a decision under paragraph 10(b) of whether the measure is a taxation measure.
12. The designated authorities seized of an issue under paragraphs 8, 9 or 10 may modify the time period allowed to decide the issue.
13. This Agreement does not require a Party to furnish or allow access to information whose disclosure would be contrary to that Party's law protecting information concerning the taxation affairs of a taxpayer.
Article 23.05. Disclosure of Information
1. This Agreement does not require a Party to furnish or allow access to information which if disclosed would impede law enforcement, or would be contrary to the Partyâs law protecting the deliberative and policy-making processes of the executive branch of government at the cabinet level, personal privacy or the financial affairs and accounts of individual customers of financial institutions.
2. In the course of a dispute settlement procedure under this Agreement:
(a) a Party is not required to furnish or allow access to information protected under its competition laws;
(b) a competition authority of a Party is not required to furnish or allow access to information that is privileged or otherwise protected from disclosure.
Article 23.06. Cultural Industries
This Agreement does not apply to a measure adopted or maintained by a Party with respect to a cultural industry except as specifically provided in Article 2.04 (National Treatment and Market Access for Goods - Tariff Elimination).
Article 23.07. World Trade Organization Waivers
If a right or obligation in this Agreement duplicates one under the WTO Agreement, the Parties agree that a measure adopted by a Party in conformity with a waiver decision adopted by the WTO pursuant to Article IX of the WTO Agreement is deemed to be also in conformity with the present Agreement. Such conforming measure of either Party may not give rise to a claim by an investor of one Party against the other under Section C of Chapter Nine (Settlement of Disputes between an Investor and the Host Party).
Chapter Twenty-Four. FINAL PROVISIONS
Article 24.01. Annexes, Appendices and Footnotes
The Annexes, Appendices and footnotes to this Agreement constitute integral parts of this Agreement.
Article 24.02. Amendments
1. The Agreement may be amended in writing by mutual consent of the Parties.
2. An amendment shall enter into force following an exchange of written notifications by the Parties certifying the completion of their respective necessary legal procedures. The amendment shall enter into force on the date agreed upon by the Parties.
Article 24.03. Reservations and Unilateral Declarations
This Agreement may not be subject to reservations nor to interpretive statements at the time of its ratification.
Article 24.04. Entry Into Force
Each Party shall notify the other Party in writing of the completion of its legal or constitutional procedures required for the entry into force of this Agreement. This Agreement shall enter into force on the first day of the second month following the latter notification of the completion of the procedures for the entry into force.
Article 24.05. Termination
This Agreement may be terminated by either Party by giving notice in writing. It shall cease to be in force 6 months after the date of receipt of that notice.
Article 24.06. Accession
A state or a regional economic organisation may accede to this Agreement upon terms and conditions to be set out in an Agreement on Accession between the Parties and the acceding state. The Parties and the acceding state or regional economic organisation shall notify each other through diplomatic channels of the completion of the domestic procedures necessary to approve the Agreement on Accession. The Agreement on Accession shall enter into force on the first day of the second month following the later of these notifications.
Conclusion
IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective Governments, have signed this Agreement.
DONE in duplicate at , this day of 2010, in the English, French and Spanish languages, each version being equally authentic
FOR CANADA
FOR THE REPUBLIC OF PANAMA
Attachments
Annex I. Reservations for existing measures
The Schedule of a Party sets out, under Articles 9.09 (Investment - Reservations and Exceptions) and 10.07 (Cross-Border Trade in Services - Reservations), the reservations taken by that Party for existing measures of a Party that do not conform with obligations imposed by:
Articles 9.04 (Investment - National Treatment) or 10.03 (Cross-Border Trade in Services - National Treatment);
Articles 9.05 (Investment - Most-Favoured-Nation Treatment) or 10.04 (Cross-Border Trade in Services - Most-Favoured-Nation Treatment);
Article 10.06 (Cross-Border Trade in Services - Local Presence);
Article 9.07 (Investment - Performance Requirements);
Article 9.08 (Investment - Senior Management and Boards of Directors); or
Article 10.05 (Cross-Border Trade in Services - Market Access).
Each reservation sets out the following elements:
Sector refers to the general sector in which the reservation is taken;
Sub-Sector refers to the specific sector in which the reservation is taken;
Industry Classification refers, where applicable, to the activity covered by the reservation according to industry classification codes;
Type of Reservation specifies the obligation referred to in paragraph 1 for which a reservation is taken;
Measure identifies a law, regulation or other measure, as qualified, where indicated, by the Description element, for which the reservation is taken. A measure cited in the Measureelement:
means the measure as amended, continued or renewed as of the date of entry into force of this Agreement, and
includes a subordinate measure adopted or maintained under the authority of and consistent with the measure; and
Description sets out the non-conforming aspects of the existing measure for which the reservation is taken. It may also set out commitments for liberalization.
In the interpretation of a reservation, all elements of the reservation, with the exception of Industry Classification, are considered. The Measure element prevails over other elements, unless a discrepancy between the Measure element and the other elements considered in their totality is so substantial and material that it would be unreasonable to conclude that the Measure element prevails, in which case the other elements prevail to the extent of that discrepancy. A reservation is interpreted in the light of the relevant provisions of the Articles against which the reservation is taken.
Where a Party maintains a measure that requires a service provider be a citizen, permanent resident or resident of its territory as a condition to the provision of a service in its territory, a reservation for that measure taken with respect to Article 10.03, 10.04 or 10.06 (Cross-Border Trade in Services - National Treatment, Most-Favoured-Nation or Local Presence) operates as a reservation with respect to Article 9.04, 9.05 or 9.07 (Investment - National Treatment, Most-Favoured-Nation or Performance Requirements) to the extent of that measure.
The listing of a measure in this Annex is without prejudice to a future claim that Annex II may apply to the measure or some application of the measure.
For purposes of this Annex:
CPC means Central Product Classification (CPC) numbers as set out in Statistical Office of the United Nations, Statistical Papers, Series M, No. 77, Provisional Central Product Classification, 1991; and
SIC means Standard Industrial Classification (SIC) numbers as set out in Statistics Canada, Standard Industrial Classification, fourth edition, 1980.
Annex I. Schedule of Canada
Sector:
All Sectors
Sub-Sector:
Industry Classification:
Type of Reservation:
National Treatment (Article 9.04)
Performance Requirements (Article 9.07)
Senior Management and Boards of Directors (Article 9.08)
Measures:
Investment Canada Act, R.S.C. 1985, c. 28 (1st Supp.)
Investment Canada Regulations, SOR/85-611, as qualified by paragraphs 8 through 12 of the Description element
Description: Investment
Under the Investment Canada Act, the following acquisitions of Canadian businesses by a non-Canadian are subject to review by the Director of Investments:
a direct acquisition of a Canadian business with assets of C$5 million or more;
indirect acquisition of a Canadian business with assets of C$50 million or more; and
indirect acquisition of a Canadian business with assets between C$5 million and C$50 million that represent more than 50% of the value of the assets of all the entities the control of which is being acquired, directly or indirectly, in the transaction in question.
For the purposes of this reservation:
non-Canadian is an individual, government or agency thereof or an entity that is not Canadian; and
Canadian means a Canadian citizen or permanent resident, government in Canada or agency thereof, or a Canadian-controlled entity as described in the Investment Canada Act.
In addition, the specific acquisition or establishment of a new business in designated types of business activities relating to Canada’s cultural heritage or national identity may be subject to review if the Governor-in-Council authorizes a review in the public interest.
An investment subject to review under the Investment Canada Act may not be implemented unless the Minister responsible for theInvestment Canada Actadvises the applicant that the investment is likely to be of net benefit to Canada. This determination is made in accordance with 6 factors described in the Act, summarized as follows:
the effect of the investment on the level and nature of economic activity in Canada, including the effect on employment, on the use of parts, components and services produced in Canada and on exports from Canada;
the degree and significance of participation by Canadians in the investment;
the effect of the investment on productivity, industrial efficiency, technological development and product innovation in Canada;
the effect of the investment on competition within an industry in Canada;
the compatibility of the investment with national industrial, economic and cultural policies, taking into consideration industrial, economic and cultural policy objectives enunciated by the government or legislature of any province likely to be significantly affected by the investment; and
the contribution of the investment to Canada’s ability to compete in world markets.
In making a net benefit determination, the Minister, through the Director of Investments, may review plans under which the applicant demonstrates the net benefit to Canada of the proposed acquisition. An applicant may also submit undertakings to the Minister in connection with a proposed acquisition that is the subject of review. In the event that an applicant fails to comply with an undertaking, the Minister may seek a court order directing compliance or another remedy authorized under the Investment Canada Act.
A non-Canadian who establishes or acquires a Canadian business, other than those that are subject to review as described above must notify the Director of Investments.
The Director of Investments will review an “acquisition of control”, as defined in the Investment Canada Act, of a Canadian business by an investor of Panama if the value of the gross assets of the Canadian business is not less than the applicable threshold.
The higher review threshold, calculated as set out in paragraph 13, does not apply to an acquisition in the cultural businesses sector.
Notwithstanding the definition of “investor of a Party” in Article 9.01, an investor may benefit from the higher review threshold only if that investor is:
a national of Panama; or
an entity controlled, as provided for in the Investment Canada Act, by a national of Panama.
An indirect “acquisition of control” by an investor of Panama of a Canadian business in a sector other than those sectors identified in paragraph 8 is not reviewable.
In connection with reviewing an acquisition of an investment under the Investment Canada Act, Canada may impose requirements or enforce a commitment or undertaking in connection with the establishment, acquisition, expansion, conduct or operation of an investment of an investor of Panama or of a non-Party for the transfer of technology, production process or other proprietary knowledge to a national or enterprise, affiliated to the transferor, in Canada.
Except for requirements, commitments or undertakings relating to technology transfer as set out in paragraph 11 of this reservation, Article 9.07 applies to requirements, commitments or undertakings imposed or enforced under the Investment Canada Act. Article 9.07 shall not be construed to apply to a requirement, commitment or undertaking imposed or enforced in connection with a review under the Investment Canada Act to locate production, carry out research and development, employ or train workers, or construct or expand particular facilities, in Canada.
For direct acquisition of control by an investor of Panama or for an investor of a non-Party where the Canadian business is controlled by an investor of Panama, the applicable threshold for review is C$299 million for 2010 and in January of each subsequent year the amount will be determined by the Minister using the following formula:
Annual Adjustment=Current Nominal GDP at Market PricesPrevious Year Nominal GDP at Market Pricesxamount determined for previous year
Current Nominal GDP at Market Prices means the average of the Nominal Gross Domestic Products at Market Prices for the most recent 4 consecutive quarters.
Previous Year Nominal GDP at Market Prices means the average of the Nominal Gross Domestic Products for the 4 consecutive quarters for the comparable period in the year preceding the year used in calculating the Current Nominal GDP at Market Prices.
For the above-mentioned purposes, the amounts will be rounded to the nearest million CAD.
Sector:
All Sectors
Sub-Sector:
Industry Classification:
Type of Reservation:
National Treatment (Article 9.04)
Senior Management and Boards of Directors (Article 9.08)
Measures:
As set out in the Description element.