(e) Acceptance of deposits and other repayable funds from the public;
(f) Lending of all types, including consumer credit, mortgage credit, factoring, and financing of commercial transactions;
(g) Financial leasing;
(h) All payment and money transmission services, including credit, charge and debit cards, travelers checks, and bankers drafts;
(i) Guarantees and commitments;
(j) Trading for own account or for account of customers, whether on an exchange, in an over-the-counter market, or otherwise, the following:
(i) money market instruments (including checks, bills, certificates of deposits),
(ii) foreign exchange,
(iii) derivative products including, but not limited to, futures and options,
(iv) exchange rate and interest rate instruments, including products such as swaps, forward rate agreements,
(v) transferable securities,
(vi) other negotiable instruments and financial assets, including bullion;
(k) Participation in issues of all kinds of securities, including underwriting and placement as agent (whether publicly or privately) and provision of services related to such issues;
(l) Money broking;
(m) Asset management, such as cash or portfolio management, all forms of collective investment management, pension fund management, custodial, depository, and trust services;
(n) Settlement and clearing services for financial assets, including securities, derivative products, and other negotiable instruments;
(o) Provision and transfer of financial information, and financial data processing and related software by suppliers of other financial services; and
(p) Advisory, intermediation, and other auxiliary financial services on all the activities listed in subparagraphs (e) through (o), including credit reference and analysis, investment and portfolio research and advice, advice on acquisitions and on corporate restructuring and strategy;
financial service supplier of a Party means a person of a Party that is engaged in the business of supplying a financial service within the territory of that Party;
investment means “investment” as defined in Article 10.28 (Definitions), except that, with respect to “loans” and “debt instruments” referred to in that Article:
(a) a loan to or debt instrument issued by a financial institution is an investment only where it is treated as regulatory capital by the Party in whose territory the financial institution is located; and
(b) a loan granted by or debt instrument owned by a financial institution, other than a loan to or debt instrument of a financial institution referred to in subparagraph (a), is not an investment;
for greater certainty, a loan granted by or debt instrument owned by a cross-border financial service supplier, other than a loan to or debt instrument issued by a financial institution, is an investment for purposes of Chapter Ten (Investment), if such loan or debt instrument meets the criteria for investments set out in Article 10.28 (Definitions).
investor of a Party means a Party or state enterprise thereof, or a person of a Party, that attempts to make, is making, or has made an investment in the territory of another Party; provided, however, that a natural person who is a dual citizen shall be deemed to be exclusively a citizen of the State of his or her dominant and effective nationality;
new financial service means a financial service not supplied in the Party’s territory that is supplied within the territory of another Party, and includes any new form of delivery of a financial service or the sale of a financial product that is not sold in the Party’s territory;
person of a Party means “person of a Party” as defined in Article 1.3 (Definitions of General Application) and, for greater certainty, does not include a branch of an enterprise of a non-Party;
public entity means a central bank or monetary authority of a Party, or any financial institution owned or controlled by a Party;
for greater certainty, a public entity (6) shall not be considered a designated monopoly or a state enterprise for purposes of Chapter Thirteen (Competition Policy, Designated Monopolies, and State Enterprises); and self-regulatory organization means any non-governmental body, including any securities or futures exchange or market, clearing agency, or other organization or association, that exercises its own or delegated regulatory or supervisory authority over financial service suppliers or financial institutions;
for greater certainty, a self-regulatory organization shall not be considered a designated monopoly for purposes of Chapter Thirteen (Competition Policy, Designated Monopolies, and State Enterprises).
Chapter Thirteen. Competition Policy, Designated Monopolies, and State Enterprises
Article 13.1. Objectives
Recognizing that the conduct subject to this Chapter has the potential to restrict bilateral trade and investment, the Parties believe that proscribing such conduct, implementing economically sound competition policies, and cooperating on matters covered by this Chapter will help secure the benefits of this Agreement.
Article 13.2. Competition Law and Anticompetitive Business Conduct
1. Each Party shall adopt or maintain national competition laws that proscribe anticompetitive business conduct and promote economic efficiency and consumer welfare, and shall take appropriate action with respect to such conduct.
2. Each Party shall maintain an authority responsible for the enforcement of its national competition laws. The enforcement policy of each Party's central government competition authorities is not to discriminate on the basis of the nationality of the subjects of their proceedings.
3. Each Party shall ensure that:
(a) before it imposes a sanction or remedy against any person for violating its competition law, it affords the person the right to be heard and to present evidence, except that it may provide for the person to be heard and present evidence within a reasonable time after it imposes an interim sanction or remedy; and
(b) a court or other independent tribunal established under that Partyâs laws imposes or, at the personâs request, reviews any such sanction or remedy.
4. Each Party other than the United States may implement its obligations under this Article through Andean Community competition laws or an Andean Community enforcement authority.
Article 13.3. Cooperation 1. the Parties Agree to Cooperate In the Area of Competition Policy. the Parties Recognize
the importance of cooperation and coordination between their respective authorities to further effective competition law enforcement in the free trade area.
2. Accordingly, the Parties shall cooperate on issues of competition law enforcement, including notification of cases that affect the important interests of another Party, consultation, and exchange of information relating to the enforcement of each Partyâs competition laws and policies.
Article 13.4. Working Group
The Parties shall establish a working group comprising representatives of each Party. The working group shall endeavor to promote greater understanding, communication, and cooperation between the Parties with respect to matters covered by this Chapter. The working group shall report on the status of its efforts to the Commission within three years of entry into force of this Agreement and may make any appropriate recommendations for future action that may further promote the achievement of the objectives of this Article.
Article 13.5. Designated Monopolies
1. Recognizing that designated monopolies should not operate in a manner that creates obstacles to trade and investment, each Party shall ensure that any privately-owned monopoly that it designates after the date of entry into force of this Agreement and any government monopoly that it designates or has designated:
(a) acts in a manner that is not inconsistent with the Party's obligations under this Agreement wherever such a monopoly exercises any regulatory, administrative, or other governmental authority that the Party has delegated to it in connection with the monopoly good or service, such as the power to grant import or export licenses, approve commercial transactions, or impose quotas, fees, or other charges;
(b) acts solely in accordance with commercial considerations in its purchase or sale of the monopoly good or service in the relevant market, including with regard to price, quality, availability, marketability, transportation, and other terms and conditions of purchase or sale, except to comply with any terms of its designation that are not inconsistent with subparagraph (c) or (d);
(c) provides non-discriminatory treatment to covered investments, to goods of another Party, and to service suppliers of another Party in its purchase or sale of the monopoly good or service in the relevant market; and
(d) does not use its monopoly position to engage, either directly or indirectly, including through its dealings with its parent, subsidiaries, or other enterprises with common ownership, in anticompetitive practices in a non-monopolized market in its territory that adversely affect covered investments.
2. Nothing in this Chapter shall be construed to prevent a Party from designating a monopoly.
3. This Article does not apply to procurement, as defined in Article 1.3 (Definitions of General Application).
Article 13.6. State Enterprises
1. The Parties recognize that state enterprises should not operate in a manner that creates obstacles to trade and investment. In that light, each Party shall ensure that any state enterprise that it establishes or maintains:
(a) acts in a manner that is not inconsistent with the Party's obligations under this Agreement wherever such enterprise exercises any regulatory, administrative, or other governmental authority that the Party has delegated to it, such as the power to expropriate, grant licenses, approve commercial transactions, or impose quotas, fees, or other charges; and
(b) accords non-discriminatory treatment in the sale of its goods or services to covered investments.
2. Nothing in this Chapter shall be construed to prevent a Party from establishing or maintaining a state enterprise.
Article 13.7. Differences In Pricing
The charging of different prices in different markets, or within the same market, where such differences are based on normal commercial considerations, such as taking account of supply and demand conditions, is not in itself inconsistent with Articles 13.5 and 13.6.
Article 13.8. Transparency and Information Requests
1. The Parties recognize the value of transparency of government competition policies.
2. On request, each Party shall make available to another Party public information concerning its:
(a) competition law enforcement activities;
(b) state enterprises and designated monopolies, public or private, at any level of government; and
(c) export associations registered or certified as such to the central government, including any conditions the Party imposes on them.
In a request under subparagraph (b), a Party shall indicate the entities or localities involved, specify the particular goods or services and markets concerned, and include indicia of practices that may restrict trade or investment between the Parties.
In a request under subparagraph (c), a Party shall specify the particular goods or services concerned.
3. On request, each Party shall make available to the other Party public information concerning exemptions provided under its competition laws. The requesting Party shall specify the particular goods or services and markets of interest and include indicia that the exemption may restrict trade or investment between the Parties.
Article 13.9. Consultations
To foster understanding between the Parties, or to address specific matters that arise under this Chapter, each Party shall, on request of another Party, enter into consultations. In its request, the Party shall indicate, if relevant, how the matter affects trade or investment between the Parties. The Party addressed shall accord full and sympathetic consideration to the concerns of the other Party.
Article 13.10. Dispute Settlement
No Party may have recourse to dispute settlement under this Agreement for any matter arising under Article 13.2, 13.3, 13.4, or 13.9.
Article 13.11. Definitions
For purposes of this Chapter:
a delegation includes a legislative grant, and a government order, directive, or other act, transferring to the monopoly or state enterprise, or authorizing the exercise by the monopoly or state enterprise of, governmental authority;
designate means to establish, designate, or authorize a monopoly or to expand the scope of a monopoly to cover an additional good or service, whether formally or in effect;
government monopoly means a monopoly that is owned, or controlled through ownership interests, by the central government of a Party or by another such monopoly;
in accordance with commercial considerations means consistent with normal business ptactices of privately-held enterprises in the relevant business or industry;
market means the geographic and commercial market for a good or service;
monopoly means an entity, including a consortium or government agency, that in any relevant market in the territory of a Party is designated as the sole provider or purchaser of a good or service, but does not include an entity that has been granted an exclusive intellectual property right solely by reason of such grant; and
non-discriminatory treatment means the better of national treatment and most-favored- nation treatment, as set out in the relevant provisions of this Agreement.
Chapter Fourteen. Telecommunications
Article 14.1. Scope and Coverage
1. this Chapter Applies to:
(a) Measures Relating to Access to and Use of Public Telecommunications Services;
(b) measures relating to obligations of suppliers of public telecommunications services;
(c) other measures relating to public telecommunications networks or services; and
(d) measures relating to the supply of information services.
2. Except to ensure that enterprises operating broadcast stations and cable systems have continued access to and use of public telecommunications services, as set out in Article 14.2, this Chapter does not apply to any measure relating to broadcast or cable distribution of radio or television programming.
3. Nothing in this Chapter shall be construed to:
(a) require a Party (or require a Party to compel any enterprise) to establish, construct, acquire, lease, operate, or provide telecommunications networks or services where such networks or services are not offered to the public generally;
(b) require a Party to compel any enterprise exclusively engaged in the broadcast or cable distribution of radio or television programming to make available its broadcast or cable facilities as a public telecommunications network; or
(c) prevent a Party from prohibiting persons operating private networks from using their networks to supply public telecommunications networks or services to third persons.
Article 14.2. Access to and Use of Public Telecommunications Servicesâ (1)
1. Each Party shall ensure that enterprises of another Party have access to and use of any public telecommunications service, including leased circuits, offered in its territory or across its borders, on reasonable and non-discriminatory terms and conditions, including as set out in paragraphs 2 through 6.
2. Each Party shall ensure that such enterprises are permitted to:
(a) purchase or lease, and attach terminal or other equipment that interfaces with a public telecommunications network;
(b) provide services to individual or multiple end-users over leased or owned circuits;
(c) connect owned or leased circuits with public telecommunications networks and services in the territory, or across the borders, of that Party or with circuits leased or owned by another person;
(d) perform switching, signaling, processing, and conversion functions; and (e) use operating protocols of their choice. 3. Each Party shall ensure that enterprises of another Party may use public telecommunications services for the movement of information in its territory or across its borders and for access to information contained in databases or otherwise stored in machine-readable form in the territory of any Party. 4. Notwithstanding paragraph 3, a Party may take such measures as are necessary to:
(a) ensure the security and confidentiality of messages; or
(b) protect the privacy of non-public personal data of subscribers to public telecommunications services,
provided that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination or disguised restriction on trade in services.
5. Each Party shall ensure that no condition is imposed on access to and use of public telecommunications networks or services, other than that necessary to:
(a) safeguard the public service responsibilities of suppliers of public telecommunications networks or services, in particular their ability to make their networks or services available to the public generally; or
(b) protect the technical integrity of public telecommunications networks or services.
6. Provided that conditions for access to and use of public telecommunications networks or services satisfy the criteria set out in paragraph 5, such conditions may include:
(a) a requirement to use specified technical interfaces, including interface protocols, for interconnection with such networks and services;
(b) type approval of terminal or other equipment that interfaces with the network and technical requirements relating to the attachment of such equipment to such networks; and
(c) a licensing, permit, registration, or notification procedure which, if adopted or maintained, is transparent and provides for the processing of applications filed thereunder in accordance with the Partyâs national law or regulation.
Article 14.3. Obligations Relating to Suppliers of Public Telecommunications Services (2)
Interconnection
1. (a) Each Party shall ensure that suppliers of public telecommunications services in its territory provide, directly or indirectly, interconnection with the suppliers of public telecommunications services of another Party at reasonable rates.
(b) In carrying out subparagraph (a), each Party shall ensure that suppliers of public telecommunications services in its territory take reasonable steps to protect the confidentiality of commercially sensitive information of, or relating to, suppliers and end-users of public telecommunications services obtained as a result of interconnection arrangements and only use such information for the purpose of providing those services.
Resale
2. Each Party shall ensure that suppliers of public telecommunications services do not impose unreasonable or discriminatory conditions or limitations on the resale of those services.
Number Portability
3. Each Party shall ensure that suppliers of public telecommunications services in its territory provide number portability to the extent technically feasible, on a timely basis, and on reasonable terms and conditions. (3)
Dialing Parity
4. Each Party shall ensure that suppliers of a particular public telecommunications service in its territory provide dialing parity to suppliers of the same public telecommunications service of the other Party and provide suppliers of public telecommunications services of the other Party non-discriminatory access to telephone numbers, directory assistance, directory listing, and operator services with no unreasonable dialing delays.
Article 14.4. Additional Obligations Relating to Major Suppliers of Public Telecommunications Services (4)
Treatment by Major Suppliers
1. Each Party shall ensure that major suppliers in its territory accord suppliers of public telecommunications services of another Party treatment no less favorable than such major suppliers accord to their subsidiaries, their affiliates, or non-affiliated service suppliers regarding:
(a) the availability, provisioning, rates, or quality of like public telecommunications services; and
(b) the availability of technical interfaces necessary for interconnection. Competitive Safeguards 2. (a) Each Party shall maintain appropriate measures for the purpose of preventing suppliers that, alone or together, are a major supplier in its territory from engaging in or continuing anti-competitive practices.
(b) The anti-competitive practices referred to in subparagraph (a) include in particular:
(i) engaging in anti-competitive cross-subsidization;
(ii) using information obtained from competitors with anti-competitive results; and
(iii) not making available, on a timely basis, to suppliers of public telecommunications services, technical information about essential
Resale
3. Each Party shall ensure that major suppliers in its territory:
(a) offer for resale, at reasonable rates, to suppliers of public telecommunications services of another Party, public telecommunications services that such major suppliers provide at retail to end-users that are not suppliers of public
telecommunications services; and
(b) do not impose unreasonable or discriminatory conditions or limitations on the resale of such services. (5)
Unbundling of Network Elements
4. (a) Each Party shall provide its telecommunications regulatory body or other relevant body (6) the authority to require major suppliers in its territory to offer access to network elements on an unbundled basis on terms and conditions, and at costoriented rates, that are reasonable, non-discriminatory, and transparent for the supply of public telecommunications services.
(b) Each Party may determine the network elements required to be made available in its territory, and the suppliers that may obtain such elements, in accordance with its law or regulations.
Interconnection
5. (a) General Terms and Conditions Each Party shall ensure that major suppliers in its territory provide interconnection for the facilities and equipment of suppliers of public telecommunications services of another Party:
(i) at any technically feasible point in the major suppliers’ networks;
(ii) under non-discriminatory terms, conditions (including technical standards and specifications), and rates;
(iii) of a quality no less favorable than that provided by such major suppliers for their own like services, for like services of non-affiliated service suppliers, or for their subsidiaries or other affiliates;
(iv) in a timely fashion, on terms, conditions (including technical standards and specifications), and cost-oriented rates that are transparent, reasonable, having regard to economic feasibility, and sufficiently unbundled so that suppliers need not pay for network components or facilities that they do not require for the service to be provided; and
(v) on request, at points in addition to the network termination points offered to the majority of users, subject to charges that reflect the cost of construction of necessary additional facilities.
(b) Options for Interconnecting with Major Suppliers Each Party shall ensure that suppliers of public telecommunications services of another Party may interconnect their facilities and equipment with those of major suppliers in its territory pursuant to at least one of the following options:
(i) a reference interconnection offer or another standard interconnection offer containing the rates, terms, and conditions that the major suppliers offergenerally to suppliers of public telecommunications services;
(ii) the terms and conditions of an interconnection agreement in force; or