(d) include interest at a commercially reasonable rate for that currency from the date of the expropriation until the date of payment; and
(e) be freely transferable.
6. A measure of a Party that would otherwise constitute an expropriation of an intellectual property right under this Article does not constitute a breach of this Article if it is consistent with the TRIPS Agreement and any waiver or amendment of that Agreement accepted by that Party.
Article 10. Transfer of Funds
1. Each Party shall permit all transfers of funds relating to a covered investment to be made freely, and without delay, into and out of its territory. Those transfers include:
(a) contributions to capital;
(b) profits, dividends, interest, capital gains, royalty payments, management fees, technical assistance and other fees;
(c) proceeds from the sale or liquidation of the whole or part of the covered investment;
(d) payments made under a contract entered into by the investor or the covered investment, including payments made pursuant to a loan agreement;
(e) payments made under Article 7 (Treatment in Case of Armed Conflict, Civil Strife or Natural Disaster) and Article 9 (Expropriation);
(f) earnings and other remuneration of foreign personnel working in connection with an investment; and
(g) payments arising out of a dispute.
2. Each Party shall permit transfers of funds relating to a covered investment to be made ina freely convertible currency at the market rate of exchange in effect at the time of transfer.
3. Each Party shall permit transfers of returns in kind relating to a covered investment to be made as authorized or specified ina written agreement between the Party and an investor of another Party or a covered investment.
4. No Party shall require its investors to transfer, or penalize one of its investors for failing to transfer, the income, earnings, profits or other amounts derived from, or attributable to, an investment in the territory of the other Party.
5. Notwithstanding paragraphs 1, 2, 3 and 4, a Party may prevent or limit a transfer through the equitable, non-discriminatory and good faith application of its domestic law relating to:
(a) bankruptcy, insolvency or the protection of the rights of a creditor;
(b) issuing, trading or dealing in securities; o (c) criminal or penal offences;
(d) financial reporting or record keeping of transfers if necessary to assist law enforcement or financial regulatory authorities;
(e) ensuring compliance with an order or judgment in judicial or administrative proceedings; or
(f) social security, public retirement or compulsory savings programmes.
6. Notwithstanding paragraphs 1, 2 and 4, and without limiting the applicability of paragraph 3, a Party may prevent or limit transfers by a financial institution to, or for the benefit of, an affiliate of or person related to that institution, through the equitable, non-discriminatory and good faith application of a measure relating to maintenance of the safety, soundness, integrity or financial responsibility of financial institutions.
7. Notwithstanding paragraph 3, a Party may restrict transfers of returns in kind in circumstances in which it could otherwise restrict those transfers under the WTO Agreement and as set out in paragraph 5.
Article 11. Taxation Measures
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 any inconsistency between the provisions of this Agreement and any such convention, the provisions of that convention shall prevail to the extent of the inconsistency.
3. Subject to paragraph 2, the provisions of Article 5 (National Treatment) and Article 6 (Most-Favoured-Nation Treatment) apply to all taxation measures, other than those on income, capital gains or on the taxable capital of corporations, except that nothing in those Articles applies:
(a) to anon-conforming provision of an existing taxation measure;
(b) to the continuation or prompt renewal of a non- conforming provision of an existing taxation measure;
(c) to an amendment to a non-conforming provision of an existing taxation measure to the extent that the amendment does not decrease its conformity at the time of the amendment with those Articles; or
(d) to anew 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 to ensure compliance with the Party's 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.
4. Provided that the conditions in paragraph 5 are met:
(a) a claim by an investor that a taxation measure of a Party is in breach of an agreement between a central government authority of that Party and the investor concerning an investment shall be considered a claim for breach of this Agreement; and
(b) the provisions of Article 9 (Expropriation) apply to taxation measures.
5. An investor may not make a claim under paragraph 4 unless:
(a) the investor provides a copy of the notice of claim to the taxation authorities of each Party, in which case, the taxation authority of a Party may submit in writing a request to the taxation authority of the other Party for a joint determination that, in the case of paragraph 4(a), the measure does not contravene an agreement between a central government authority of that Party and the investor concerning an investment, or, in the case of paragraph 4(b), the measure in question is not an expropriation; and
(b) six months after receiving notification of the claim by the investor, the taxation authorities of the Parties fail to reach a joint determination that, in the case of paragraph 4(a), the measure does not contravene an agreement between a central government authority of that Party and the investor concerning an investment, or in the case of paragraph 4(b), the measure in question is not an expropriation.
6. If, in connection with a claim by an investor of a Party or a dispute between the Parties, an issue arises as to whether a measure of a Party is a taxation measure or whether an inconsistency exists between this Agreement and a tax convention, a Party may submit in writing to the taxation authorities of each Party a request for a joint determination. A Tribunal or arbitral panel seized of a claim or a dispute for which such a request has been made may not proceed with the claim until:
(a) it receives the decision of the taxation authorities within six months of the request for joint determination, in which case, the decision of the taxation authorities shall bind the Tribunal formed pursuant to Section E (Investor-State Dispute Settlement) or arbitral panel formed pursuant to Section G (State-to-State Dispute Settlement); or
(b) six months have passed following the request for joint determination and the taxation authorities have not decided the issue, in which case, the Tribunal or arbitral panel shall decide the issue before proceeding with the claim.
7. Each Party shall publish and notify the other Party by diplomatic note of the identity and contact information of the taxation authorities referred to in this Article.
Article 12. Performance Requirements
1. No Party shall, in connection with the establishment, acquisition, expansion, management, conduct, operation, or sale or other disposition of an investment in its territory, impose or enforce a requirement, or enforce a commitment or undertaking:
(a) to export a given level or percentage of a good or service;
(b) to achieve a given level or percentage of domestic content;
(c) to purchase, use, or accord a preference toa good produced or service provided in its territory, or to purchase a good or service from a person in its territory;
(d) to relate the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows associated with that investment;
(e) to restrict sales of a good or service in its territory that the investment produces or provides by relating those sales to the volume or value of its exports or foreign exchange earnings;
(f) to transfer technology, a production process, source code of software, or other proprietary knowledge to a person in its territory;
(g)
(i) to purchase, use, or accord a preference to, in its territory, technology of the Party or of a person of the Party, (4) or
(ii) that prevents the purchase or use of, or the according of a preference to, in its territory, a technology;
(h) that prohibits or restricts the cross-border transfer of information by electronic means, if this transfer is related to the business of a covered investment or the business of an investor of a Party; or
(i) to supply exclusively from the territory of the Party a good that the investment produces or a service it provides to a specific regional market or to the world market.
2. No Party shall condition the receipt or continued receipt of an advantage, in connection with the establishment, acquisition, expansion, management, conduct, operation, or sale or other disposition of an investment in its territory, on compliance with a requirement:
(a) to achieve a given level or percentage of domestic content;
(b) to purchase, use, or accord a preference to a good produced in its territory, or to purchase a good from a producer in its territory;
(c) to relate the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows associated with that investment; or
(d) to restrict sales of a good or service in its territory that the investment produces or provides by relating those sales to the volume or value of its exports or foreign exchange earnings.
3. The provisions of:
(a) paragraph 2 do not prevent a Party from conditioning the receipt or continued receipt of an advantage, in connection with any investments, on compliance with a requirement to locate production, provide a service, train or employ workers, construct or expand particular facilities, or carry out research and development in its territory;
(b) paragraphs 1(a), 1(b), 1(c), 2(a), and 2(b) do not apply to a qualification requirement for a good or service with respect to export promotion and foreign aid programs;
(c) paragraphs 1(b), 1(c), 1(f), 1(g), 1(h), 1(i), 2(a), and 2(b) do not apply to procurement by a Party;
(d) paragraphs 2(a) and 2(b) do not apply to a requirement imposed by an importing Party relating to the content of a good necessary to qualify for a preferential tariff or preferential quota;
(e) paragraphs 1(f) and 1(g) do not apply:
(i) if a Party authorizes use of an intellectual property right in accordance with Article 31 (5) of the TRIPS Agreement, or to a measure requiring the disclosure of proprietary information that falls within the scope of, and is consistent with, Article 39 of the TRIPS Agreement, or
(ii) if the requirement is imposed or the requirement, commitment, or undertaking is enforced by a court, administrative tribunal or competition authority to remedy an alleged violation of domestic competition law;
(f) paragraphs 1(b), 1(c), 1(f), 1(g), 1(h), 2(a) and 2(b) shall not prevent a Party from adopting or maintaining a measure to achieve a legitimate public policy objective, provided that the measure:
(i) is not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade, and
(ii) does not impose restrictions greater than are required to achieve the objective;
(g) paragraph 1(f) do not preclude a regulatory body or judicial authority of a Party from requiring a person of the other Party to preserve and make available the source code of software, or an algorithm expressed in that source code, to the regulatory body for a specific investigation, inspection, examination, enforcement action, or judicial proceeding, (6) subject to safeguards against unauthorized disclosure;
(h) paragraphs 1(g) and 1(h) do not apply to a measure that a Party adopts or maintains relating to a financial institution; and
(i) paragraph 1(h) do not apply to information held or processed by or on behalf of a Party, or a measure related to this information, including a measure related to its collection.
Article 13. Senior Management, Boards of Directors and Entry of Personnel
1. No Party shall require that an enterprise of that Party that is a covered investment appoint to a senior management position an individual of any particular nationality.
2. A Party may require that up to a majority of the board of directors, or a committee thereof, of an enterprise of that Party that is a covered investment be of a particular nationality or resident in the territory of the Party, provided that the requirement does not materially impair the ability of the investor to exercise control over its investment.
3. A Party should encourage enterprises to consider greater diversity in senior management positions or on board of directors, which may include a requirement to nominate women.
4. Subject to its domestic law relating to the entry of foreign nationals, each Party shall grant temporary entry to nationals employed by an investor of the other Party who seek to render managerial or executive services, or services that require specialized knowledge, to a covered investment of that investor.
Article 14. Subrogation
If a Party or an agency of a Party makes a payment to one of its investors under a guarantee or a contract of insurance, or other form of indemnity it has entered into in respect of a covered investment:
(a) the other Party in whose territory the covered investment was made shall recognize the validity of the subrogation or transfer of any rights the investor would have possessed with respect to the covered investment but for the subrogation or transfer; and
(b) the investor shall be precluded from pursuing these rights to the extent of the subrogation or transfer, unless a Party or an agency of a Party authorizes the investor to act on its behalf.
Article 15. Transparency
1. Each Party shall ensure that its laws, regulations, procedures, and administrative rulings of general application respecting a matter covered by this Agreement are promptly published or otherwise made available in such a manner as to enable interested persons and the other Party to become acquainted with them.
2. To the extent possible, each Party shall:
(a) publish in advance any measure referred to in paragraph 1 that it proposes to adopt;
(b) provide interested persons and the other Party a reasonable opportunity to comment on that proposed measure; and
(c) allow reasonable time between publication of the measure referred to in paragraph 1 and the date on which investors of a Party must comply with the measure.
3. Each Party shall ensure that its laws, regulations, procedures and administrative rulings with regards to the rights of Indigenous peoples, including any applicable consultation process, are made available in such a manner as to enable an interested person to duly comply with the Party's domestic laws.
4. Each Party shall maintain or establish appropriate mechanisms for responding to enquiries from interested persons regarding the measures referred to in paragraphs 1 and 3.
5. On request by a Party, the other Party shall promptly provide information and respond to questions pertaining to a proposed or actual measure that the requesting Party considers affects or may affect an investment. A Party may convey a request or provide information under this Article to the other Party through its contact point.
6. Each Party shall designate a contact point to facilitate communications between the Parties on any matter covered by this Agreement. Each Party shall notify the other Party in writing of its designated contact point no later than 60 days after the date of entry into force of this Agreement. Each Party shall promptly notify the other Party in the event of any change to its contact point.
Article 16. Responsible Business Conduct
1. The Parties reaffirm that investors and their investments shall comply with domestic laws and regulations of the host State, including laws and regulations on human rights, the rights of Indigenous peoples, gender equality, environmental protection and labour.
2. Each Party reaffirms the importance of internationally recognized standards, guidelines and principles of responsible business conduct that have been endorsed or are supported by that Party, including the OECD Guidelines for Multinational Enterprises and the United Nations Guiding Principles on Business and Human Rights, and shall encourage investors and enterprises operating within its territory or subject to its jurisdiction to voluntarily incorporate these standards, guidelines and principles into their business practices and internal policies. These standards, guidelines and principles address areas such as labour, environment, gender equality, human rights, community relations and anti-corruption.
3. Each Party should encourage investors or enterprises operating within its territory to undertake and maintain meaningful engagement and dialogue, in accordance with international responsible business conduct standards, guidelines and principles that have been endorsed or are supported by that Party, with Indigenous peoples and local communities.
4. The Parties shall cooperate on and facilitate joint initiatives to promote responsible business conduct.
Article 17. Denial of Benefits
A Party may, within a reasonable time and no later than its principal submission on the merits, such as the counter-memorial, in an arbitration under this Agreement, deny the benefits of this Agreement to an investor of the other Party that is an enterprise of that Party and to investments of that investor if:
(a) an investor of a non-Party owns or controls the enterprise; and
(b) the denying Party adopts or maintains a measure with respect to the non-Party or investors of the non-Party that:
(i) relates to the maintenance of international peace and security, and
(ii) prohibits transactions with the enterprise or would be violated or circumvented if the benefits of this Agreement were accorded to the enterprise or to its investment.
Section C. Investment Promotion and Facilitation
Article 18. Promotion of Investment
Each Party shall encourage the creation of favourable conditions for investment in its territory by investors of the other Party and shall admit those investments in accordance with this Agreement.
Article 19. Processing of Applications for an Authorization
1. Each Party shall ensure that authorization procedures it adopts or maintains do not unduly complicate or delay the establishment, acquisition, expansion, management, conduct, operation and sale or other disposition of an investment in the territory of a Party.
2. A Party's competent authority should:
(a) accept applications for an authorization in electronic format under similar conditions of authenticity as paper submissions; and
(b) accept authenticated copies, if considered appropriate, in place of original documents.
3. At the request of an investor of a Party, a Party's competent authority shall provide, without undue delay, information concerning the status of the application for an authorization.
4. If a Party's competent authority considers an application for an authorization to be incomplete, the competent authority shall, within a reasonable period of time, inform the applicant for an authorization, identify the additional information required to complete the application for an authorization, and provide the applicant for an authorization an opportunity to correct deficiencies.
5. Each Party shall ensure that the processing of an application for an authorization, including reaching a final decision, is completed within a reasonable timeframe from the submission of a complete application for an authorization.
6. Each Party shall ensure that an authorization, once granted, enters into effect without undue delay, in accordance with the terms and conditions specified therein.
7. If a Party's competent authority rejects an application for an authorization, the Party shall ensure that its competent authority:
(a) informs the applicant in writing and without undue delay;
(b) upon request of the applicant, informs the investor of the reasons the application for an authorization was rejected and of the timeframe for an appeal or review against the decision; and
(c) permits the applicant to resubmit an application for an authorization.
Article 20. Fees and Charges
1. A fee that an investor of a Party may incur in relation to its application for an authorization shall be reasonable and commensurate with the costs incurred to process the application, and shall not in itself restrict the establishment, acquisition, expansion, management, conduct, operation and sale or other disposition of an investment in the territory of a Party.
2. Authorization fees do not include payments for auction, the use of natural resources, royalties, tendering or other non- discriminatory means of awarding concessions, or mandated contributions to provide a universal service.
3. This Article does not apply to a measure a Party adopts or maintains relating to a financial institution.
Section D. Reservations, Exceptions, Exclusions
Article 21. Non-Conforming Measures
1. Article 5 (National Treatment), Article 6 (Most-Favoured- Nation Treatment), Article 12 (Performance Requirements), Article 13 (Senior Management, Boards of Directors and Entry of Personnel) and Section C (Investment Promotion and Facilitation) shall not apply to:
(a) any existing non-conforming measure, maintained in the territory of a Party;
(b) any measure adopted or maintained after the date of entry into force of this Agreement that, at the time of sale or other disposition of a government's equity interests in, or the assets of, an existing state enterprise or an existing governmental entity:
(i) prohibits or imposes limitations on the ownership or control of equity interests or assets, or
(ii) imposes nationality requirements relating to senior management or members of the board of directors;
(c) the continuation or prompt renewal of any non- conforming measure referred to in subparagraph (a) or (b); or
(d) an amendment to any non-conforming measure referred to in subparagraph (a) or (b) to the extent that the amendment does not decrease the conformity of the measure, as it existed immediately before the amendment, with Article 5 (National Treatment), Article 6 (Most-Favoured-Nation Treatment), Article 12 (Performance Requirements), Article 13 (Senior Management, Boards of Directors and Entry of Personnel) and Section C (Investment Promotion and Facilitation).
2. Article 5 (National Treatment), Article 6 (Most-Favoured- Nation Treatment), Article 12 (Performance Requirements), Article 13 (Senior Management, Board of Directors and Entry of Personnel) and Section C (Investment Promotion and Facilitation) shall not apply to a measure that a Party adopts or maintains with respect to sectors, subsectors or activities, as set out in its schedule to Annex I.
3. No Party shall, under any measure adopted after the date of entry into force of this Agreement and covered by its Schedule to Annex I, require an investor of the other Party, by reason of its nationality, to sell or otherwise dispose of an investment existing at the time the measure becomes effective.
4. Article 6 (Most-Favoured-Nation Treatment) shall not apply to treatment accorded by a Party pursuant to agreements set out in its schedule to Annex Il.
5. In respect of intellectual property rights, a Party may derogate from Article 5 (National Treatment), Article 6 (Most-Favoured-Nation Treatment) and Article 12 (Performance Requirements) in a manner that is consistent with:
(a) the TRIPS Agreement;
(b) an amendment to the TRIPS Agreement in force for both Parties; and
(c) a waiver to the TRIPS Agreement granted pursuant to Article IX of the WTO Agreement.
6. Article 5 (National Treatment), Article 6 (Most-Favoured-Nation Treatment) and Article 13 (Senior Management, and Board of Directors and Entry of Personnel) do not apply to:
(a) procurement by a Party; or
(b) a subsidy or grant provided by a Party, including a government-supported loan, a guarantee or insurance.
Article 22. General Exceptions
1. This Agreement does not prevent Canada from adopting or maintaining a measure necessary to fulfill Aboriginal or treaty rights as recognized and affirmed by section 35 of the Constitution Act, 1982, including land claims agreements, and those rights set out in self-government agreements between the central government or a regional level of government and Aboriginal peoples.
2. Notwithstanding the other provisions of this Agreement, a Party is not prevented from adopting or maintaining a measure for prudential reasons, (7) including for the protection of investors, depositors, policy holders, or persons to whom a fiduciary duty is owed by a financial institution, or to ensure the integrity and stability of the financial system. If the measure does not conform with the provisions of this Agreement to which this exception applies, the measure must not be used as a means of avoiding the Party's commitments or obligations under those provisions.
3. This Agreement does not apply to non-discriminatory measures of general application taken by a central bank or monetary authority of a Party, or a financial institution that is owned or controlled by a Party, in pursuit of monetary and related credit or exchange rate policies. This paragraph shall not affect a Party's obligations under Article 10 (Transfers of Funds) or Article 12 (Performance Requirements).