(b) Issuing, trading, or dealing in securities, futures, options, or derivatives;
(c) Financial reporting or record-keeping of transfers when necessary to assist law enforcement or financial regulatory authorities;
(d) Criminal offences; or
(e) Ensuring compliance with orders or judgments in judicial or administrative proceedings.
Article 9.14. Statistics of Trade In Services
The Parties shall make every effort to encourage their competent authorities to work together to exchange information, share methodologies and publish international trade statistics of the Parties, based on international standards.
Article 9.15. Services Subcommittee
1. The Services Subcommittee of the Joint Committee on Investment and Services established in Article 10.33 (Joint Committee on Investment and Services) shall consult annually, or as agreed by the Parties, and it may conduct meetings jointly with private sector representatives.
2. The Services Subcommittee shall have the following functions:
(a) Determining its own procedural rules;
(b) Sharing information and promoting cooperation in matters concerning the trade in services;
(c) Assessing and making recommendations to the Joint Committee on Investment and Services, related to mechanisms, instruments or agreements, in order to facilitate and increase the trade in services between the Parties;
(d) Identifying and analysing the barriers that affect the trade in services with a view to reducing or eliminating them;
(e) Making proposals to the Joint Committee on Investment and Services so that the Services Subcommittee may operate more effectively or achieve its objectives;
(f) considering the issues related to the trade in services proposed by any Party;
(g) Reviewing the implementation of this Chapter, and facilitating enquiries between the Parties on the feasibility of removing any requirement for holding citizenship or permanent residence for the issuing of licences or certification to the service suppliers of each Party; and
(h) Coordinating the tasks established in Articles 9.8, 9.11, 9.12 and 9.14, and carrying out other functions entrusted to them by the Joint Committee on Investment and Services or those established by this Additional Protocol.
Article 9.16. Denial of Benefits
Subject to prior notification, a Party may deny the benefits of this Chapter to a service supplier of another Party if the service supplier is a company that is owned or controlled by persons of a non-Party state or the denying Party, and the company has no substantial business activities in the territory of any Party other than the denying Party.
Chapter 10. INVESTMENT
Section A.
Article 10.1. Definitions
For the purposes of this Chapter: Arbitration Rules of the UNCITRAL means the Arbitration Rules of the United Nations Commission on International Trade Law, revised in 2010;
Claimant means an investor of a Party that is party to an investment dispute with another Party;
Covered investment means an investment in the territory of one Party by an investor of another Party that entered into force before this Additional Protocol, or the investments made, acquired or expanded at a later date;
Disputing Parties means both the claimant and the respondent; Disputing Party means either the claimant or the respondent;
Freely usable currency means a "freely usable currency" as defined by the International Monetary Fund under its Articles of Agreement;
ICSID means the International Centre for Settlement of Investment Disputes, established by the ICSID Convention;
ICSID Additional Facility Rules means the Additional Facility Rules for the Administration of Proceedings by the Secretariat of the International Centre for Settlement of Investment Disputes;
ICSID Convention means the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, signed in Washington on 18 March 1965;
Inter-American Convention means the Inter-American Convention on_ International Commercial Arbitration, signed in Panama on 30 January 1975;
Investment means any asset owned or controlled by an investor, directly or indirectly, that has the characteristics of an investment, including such characteristics as the commitment of capital or other resources, the expectation of gain or profit, or the assumption of risk. Forms that an investment may take include:
(a) An enterprise
(b) Shares, stock and other forms of revenue-sharing in an enterprise;
(c) Bonds, debentures or other debt instruments issued by an enterprise (1)
(d) But it does not include debt instruments issued by a Party or a state-owned enterprise, or loans to a Party or a state-owned enterprise, regardless of the original expiry date;
(e) Futures, options and other derivatives;
(f) Turnkey, (2) construction, management, production, concession, revenue-sharing and other similar contracts, including those that involve the presence of an investor's property in the territory of the Parties;
(g) Intellectual property rights;
(h) Licences, authorisations, permits and similar rights granted under domestic law, (3) and
(i) Other rights of tangible or intangible, moveable or immoveable property and related property rights, such as leases, mortgages, encumbrances and pledges;
Investment does not include an order or ruling granted in judicial or administrative proceedings;
Investor from a non-Party means, with respect to a Party, an investor who intends (4) to make, is making or has already made an investment in the territory of that Party, and that the investor is not from any of the Parties;
Investor from one Party means a Party or state-owned enterprise from that country, or a national or enterprise of said Party that intends (5) to make, is making or has already made an investment in the territory of another Party; considering, however, a natural person with double nationality to be exclusively a national of the State of its dominant and effective nationality;
Monopoly means an entity, including a consortium or governmental agency, that in the relevant market of the territory of a Party, has been designated as the sole supplier or buyer of a good or service, however the term does not include entities that have been granted an intellectual property right by sole virtue of said designation;
New York Convention means the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, signed in New York on 10 June 1958;
Non-disputing Party means a Party that is not part of a dispute related to an investment pursuant to Section B of this Chapter;
Protected information means confidential commercial information, confidential business information or privileged information or information that is protected in any another way from disclosure pursuant to a Party's laws;
Respondent means the Party that is a party to an investment dispute; Secretary-General means the Secretary-General of the ICSID; Tribunal means an arbitration tribunal established under Articles 10.19 or 10.25;
TRIPS Agreement means the Agreement on Trade Related Aspects of Intellectual Property Rights, that is part of the Agreement on the WTO.
Article 10.2. Scope of Application
1. This Chapter applies to the measures adopted or maintained by a Party with respect to:
(a) Investors from another Party;
(b) Covered investments; and
(c) All investments in the territory of the Party with regard to Articles 10.8 and 10.31.
2. The requirement by a Party for a service provider from another Party to provide a bond or other form of financial guarantee as a condition for providing a cross-border service in its territory does not cause this Chapter to apply to the cross-border supply of that service. This Chapter applies to the measures adopted or maintained by the Party in relation to the bond or financial guarantee, where said bond or financial guarantee constitutes a covered investment.
3. This Chapter does not apply to:
(a) The measures adopted or maintained by a Party in relation to the financial institutions of another Party, the investors of the other Party and the investments of said investors, in financial institutions in the territory of the Party, as defined in Article 11.1 (Definitions);
(b) Any act or deed that took place or any situation that ceased to exist before the effective date of this Additional Protocol, regardless of the consequences of such deeds, acts or situations.
4. The obligations of a Party under this section shall apply to a state-owned enterprise or another person when the said enterprise or person exercises any regulatory or administrative authority or other governmental authority delegated to them by that Party, such as the authority to expropriate, issue licences, approve commercial transactions or impose quotas, fees or other charges.
5. For greater certainty, nothing in this Chapter shall be construed as imposing an obligation on a Party to privatise any investment owned or controlled by that Party or as forbidding a Party from designating or establishing a monopoly. If a Party adopts or maintains a measure to privatise such investment or a measure to designate or establish a monopoly, this Chapter shall apply to said measure.
Article 10.3. Relation to other Chapters
In the event of inconsistency between this Chapter and another Chapter, the other Chapter shall prevail to the extent of the inconsistency.
Article 10.4. National Treatment
1. Each Party shall accord to investors of another Party treatment no less favourable than that it accords to its own investors, under similar circumstances, in terms of the establishment, acquisition, expansion, administration, management, operation and sale or other disposition of investments in its territory.
2. Each Party shall accord to covered investments treatment no less favourable than that it accords the investments of their own investors in its territory, under similar circumstances, in terms of the establishment, acquisition, expansion, administration, management, operation and sale or other disposition of investments in their territory.
3. Treatment accorded by a Party under paragraphs 1 and 2 means, with respect to a regional or state government, treatment no less favourable that the most favourable treatment which that regional or state government accords, in like circumstances, to the investors and investments of investors of the Party of which it forms a part.
Article 10.5. Most-Favoured-Nation Treatment (6)
1. Each Party shall accord to investors of another Party treatment no less favourable than they accord to the investors of any non-Party, under similar circumstances, in terms of the establishment, acquisition, expansion, administration, management, operation and sale or other disposition of investments in their territory.
2. Each Party shall accord to covered investments treatment no less favourable than they accord to the investments of the investors of any non-Party in their territory, under similar circumstances, in terms of the establishment, acquisition, expansion, administration, management, operation and sale or other disposition of investments in their territory.
Article 10.6. Minimum Standard of Treatment (7)
1. Each Party shall accord to covered investments treatment pursuant to customary international law, including fair and equitable treatment and full protection and security.
2. For greater certainty, paragraph 1 prescribes that the minimum standard of treatment of foreigners pursuant to customary international law is the minimum standard of treatment that shall be accorded to covered investments. The concepts of "fair and equitable treatment" and "full protection and security" do not require treatment in addition to or beyond that which is required by that standard and they do not create additional substantive rights. The obligation in paragraph 1 to provide:
(a) "Fair and equitable treatment" includes the obligation not to deny justice in criminal, civil or administrative adjudicatory proceedings, pursuant to the principle of due process incorporated into the principal legal systems of the world, and
(b) "Full protection and security" requires each Party to accord the level of police protection required under customary international law.
3. The determination that another provision of this Additional Protocol or another international agreement has been breached, does not establish that there has been a breach of this Article.
Article 10.7. Treatment In Case of Strife
1. Notwithstanding Article 10.10.7 (b), each Party shall accord to the investors of another Party whose investments have incurred losses in the territory of said Party due to armed conflict or civil disputes, treatment no less favourable than they accord to their own investors or investors of another non-Party, with respect to measures such as restitution, indemnification, compensation and other settlements.
2. Paragraph 1 does not apply to existing measures related to subsidies or grants that may be inconsistent with Article 10.4, except for Article 10.10.7 (b).
Article 10.8. Performance Requirements
1. No Party may impose or enforce any of the following requirements, nor may they enforce any obligation or commitment (8) in terms of the establishment, acquisition, expansion, administration, management, operation, sale or any other disposition of investments in their territory by an investor of a Party or a non-Party:
(a) To export a given level or percentage of goods or services;
(b) To achieve a given level or percentage of domestic content;
(c) To purchase, use or accord a preference to goods produced in its territory, or to purchase goods from persons in its territory;
(d) To relate in any way the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows associated with such investment;
(e) To restrict sales of goods or services in its territory that such investment produces or provides by relating such sales in any way to the volume or value of its exports or foreign exchange earnings;
(f) To transfer technology, (9) a production process or other proprietary knowledge to a person in its territory, or
(g) To exclusively supply from the territory of the Party the goods it produces or the services it provides to a particular regional market or to the world market.
2. No Party may condition the receipt or continued receipt of an advantage in terms of the establishment, acquisition, expansion, administration, management, operation, sale or any other disposition of investments in their territory by an investor of a Party or a non-Party, on compliance with any of the following requirements:
(a) Achieving a given level or percentage of domestic content;
(b) Purchasing, using or according a preference to goods produced in its territory, or purchasing goods from persons in its territory;
(c) Relating in any way the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows associated with such investment; or
(d) Restricting the sales of goods or services in its territory that such investment produces or provides by relating such sales in any way to the volume or value of its exports or foreign exchange earnings.
3. Nothing in paragraph 2 shall be construed as an impediment to a Party conditioning the receipt or continued receipt of an advantage, in terms of an investment in its territory by an investor of another Party or a non-Party, on compliance with a requirement to locate the production site, provide services, train or employ workers, construct or extend private facilities or carry out research and development in its territory.
4. Paragraph 1 (f) does not apply:
(a) Where a Party authorises the use of an intellectual property right under Article 31 (10) of the TRIPS Agreement or to measures that require the disclosure of private information that is within the scope of application of, and consistent with, Article 39 of the said Agreement, or
(b) Where a requirement is imposed or a commitment or obligation is ordered by a judicial or administrative tribunal or a competent authority, to remedy a practice deemed anti- competitive following judicial or administrative proceedings under the Party's competition law. (11)
5. Provided that said measures are not applied arbitrarily or unjustifiably and on the condition that they do not constitute a disguised restriction on international trade or investment, nothing in paragraphs 1 (b), 1 (c), 1 (f), 2 (a) and 2 (b) shall be construed as preventing a Party from adopting or maintaining measures, including those of an environmental nature that are:
(a) Necessary to ensure compliance with laws and regulations that may be inconsistent with this Additional Protocol;
(b) Necessary for protecting human, animal or plant life or health, or
(c) Related to the conservation of non-renewable natural resources, living or non-living.
6. Paragraphs 1 (a), 1 (b), 1 (c), 2 (a) and 2 (b) do not apply to requirements for qualification of products and services in connection to export promotion and foreign aid programmes.
7. Paragraphs 1 (b), 1 (c), 1 (f), 1 (g), 2 (a) and 2 (b) do not apply to government procurement.
8. Paragraphs 2 (a) and 2 (b) do not apply to requirements imposed by an Importing Party relating to the content of goods necessary to qualify for preferential tariffs or quotas.
9. For greater certainty, paragraphs 1 and 2 do not apply to any other commitment, obligation or requirement other than those specified in those paragraphs.
10. This Article does not preclude enforcement of any commitment, obligation or requirement between private parties, where a Party did not impose or require the commitment, obligation or requirement.
Article 10.9. Senior Management and Boards of Directors
1. No Party may require an enterprise of that Party that is a covered investment to appoint to senior management positions natural persons of a particular nationality.
2. A Party may require the majority of members of the board of directors, or any committee thereof, of an enterprise of that Party that is a covered investment, to be of a particular nationality, or to be 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.
Article 10.10. Non-Conforming Measures
1. Articles 10.4, 10.5, 10.8 and 10.9 shall not apply to:
(a) Any existing non-conforming measure that may be maintained by the central, federal, regional or state government of a Party, under the provisions of its Schedule to Annex I;
(b) Any existing non-conforming measure that is maintained by a Party's local government;
(c) The maintenance or prompt renewal of any non-conforming measure referred to in subparagraphs (a) and (b), or
(d) The amendment or modification of any non-conforming measure referred to in subparagraphs (a) and (b), provided that said amendment or modification does not decrease the conformity of the measure as it existed immediately before the amendment or modification, with Articles 10.4, 10.5, 10.8 and 10.9.
2. Articles 10.4, 10.5, 10.8 and 10.9 shall not apply to any measure that a Party may adopt or maintain, in relation to sectors, subsectors or activities as described in its Schedule to Annex II.
3. No Party may, pursuant to any measure adopted after this Additional Protocol enters into force and including any measure in its Schedule to Annex II, require an investor of another Party, by reason of their nationality, to sell or otherwise dispose of an investment existing when the measure comes into effect.
4. In the event that a Party modifies any existing non-conforming measure pursuant to its Schedule to Annex I under paragraph 1(c) after this Additional Protocol enters into force, the Party shall inform the other Parties of said modification, as soon as practicable.
5. In the event that a Party adopts any measure related to sectors, subsectors or activities as described in its Schedule to Annex II after this Additional Protocol enters into force, the Party must, insofar as possible, inform the Parties of said measure.
6. Articles 10.4 and 10.5 shall not apply to any measure that constitutes an exemption or derogation from the obligations set out in the TRIPS Agreement, pursuant to the specific provisions of said Agreement.
7. The provisions of Articles 10.4, 10.5 and 10.9 shall not apply to:
(a) Government procurement, or
(b) Subsidies or grants accorded by a Party, including government-backed loans, guarantees and insurances.
Article 10.11. Transfers (12)
1. Each Party shall allow all transfers and payments into and out of its territory for covered investments to be made freely and without delay. Said transfers include:
(a) Capital contributions;
(b) Profits, dividends, interests, capital gains, royalty payments, administration expenses, technical assistance and other fees;
(c) The product of the total or partial sale or liquidation of the covered investment;
(d) Payments made pursuant to a contract to which an investor or covered investment is party to, including payments made under a loan agreement;
(e) Payments made pursuant to Article 10.7 and Article 10.12; and
(f) Payments which arise from the application of Section B of this Chapter.
2. Each Party shall allow the transfer of returns in kind from a covered investment to be made as authorised or specified in a written agreement (13) between the Party and a covered investment or an investor from another Party.
3. Each Party shall allow transfers from a covered investment to be made in a freely usable currency at the market exchange rate prevailing on the date of transfer.
4. No Party may require its investors to make transfers of their income, gains, profits or other values derived from, or attributable to, investments made in the territory of another Party, nor may the Party penalise investors in the event that they do not make such transfers.
5. Notwithstanding paragraph 2, a Party may restrict the transfers of returns in kind, under circumstances where it could otherwise restrict said transfers pursuant to the provisions of this Additional Protocol, including the specifications of paragraph 6.
6. Notwithstanding the provisions of paragraphs 1, 2 and 3 of this Article, a Party may prevent a transfer through the equitable, non-discriminatory and good faith application of its laws relating to:
(a) Bankruptcy, insolvency or protection of the rights of creditors; (14)
(b) Compliance with settlements, sentences and awards issued in judicial, administrative or arbitral proceedings; (15)