1. Each Party shall accord to investors and financial institutions of another Party a treatment no less favorable than that which, in similar circumstances, it accords to investors the financial institutions of a country that is not a Party in terms of expansion, administration, conduct, operation and sale or other form of disposal of suppliers of financial services and investments in its territory.
2. This Article shall not be construed as an obligation of a Party to give investors and the financial institutions of the other Party the benefit of any treatment, preference or privilege that arises from:
(a) Provisions related to the settlement of disputes regarding investments or trade in financial services contained in an agreement international, or
(b) Any international trade agreement, including agreements such as those create a regional economic integration organization, free trade zone, customs union or common market of which a Party is a party before entry into strength of this Agreement.
Article 9.5. Treatment of Certain Information
1. Nothing in this Chapter shall require a Party to disclose or allow access to:
(a) Information relating to the financial affairs and accounts of individual customers of financial institutions, or
(b) Any confidential information, the disclosure of which may prevent the application of its legislation or is contrary to the public interest or prejudice the interests legitimate commercials of certain people.
2. The Parties shall respect the level of protection of information established by the Party that has submitted it, according to its applicable laws.
Article 9.6. Prudential Measures
1. Notwithstanding any other provision of this Chapter and Chapter 8 (Cooperation and Facilitation of Investments), a Party shall not be prevented from adopting or maintaining measures prudential reasons, such as:
(a) The protection of investors, depositors, participants in the financial market, policyholders, policy beneficiaries, or people with whom a financial institution has contracted a fiduciary obligation;
(b) The maintenance of security, soundness, solvency, integrity or responsibility financing of individual financial institutions, as well as security and financial and operational integrity of the compensation and payment systems, or
(c) To guarantee the integrity and stability of a Party's financial system.
2. If the measures referred to in paragraph 1 are not in accordance with the provisions of this Chapter, these can not be used as a means to avoid commitments or obligations contracted by the Parties within the framework of this Chapter.
3. Nothing in this Chapter and in Chapter 8 (Cooperation and Facilitation of Investments) will apply to non-discriminatory measures of general application adopted by any public entity in compliance with related monetary and credit policies and exchange policies. This paragraph shall not affect the obligations of a Party under Article 8.11 (Transfers).
4. Notwithstanding Article 8.11 (Transfers), as incorporated in this Chapter, a Party may prevent or limit transfers from, or for the benefit of, a financial institution, a subsidiary of or person related to said institution, through the equitable application, not discriminatory and in good faith of measures relating to the maintenance of security, solvency, integrity or financial responsibility of financial institutions. This paragraph does not prejudges any other provision of this Chapter or Chapter 8 (Cooperation and Facilitation of Investments) that allows a Party to restrict transfers.
5. For greater certainty, nothing in this Chapter shall be construed as a impediment for a Party to adopt or apply the necessary measures to guarantee the compliance with laws or regulations that are not incompatible with this Chapter, including those related to the prevention of practices that lead to error, or fraudulent, or to make against the effects of a breach of financial services contracts, subject to the requirement that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between countries in which similar conditions prevail, or a disguised restriction on investment in financial institutions covered by this Chapter.
Article 9.7. Regulatory Harmonization
As a way to ensure that the process of deepening financial integration between the Parties is given guaranteeing financial stability, each Party will make its best efforts in order to share international best practices related to the financial system and monetary.
Article 9.8. Administration of Certain Measures, Publication, Effective Regulations and Transparent for the Financial Services Sector
1. The Parties recognize that the transparent regulations and policies that govern the activities of financial institutions are important to facilitate institutions financial institutions, both the access to their respective markets and the operations in them. Every Party is committed to promoting regulatory transparency in financial services supplied by a financial institution.
2. Each Party shall ensure that all measures of general application to which this Chapter applies are administered in a reasonable, objective and impartial manner.
3. Each Party, insofar as practicable and in accordance with its legislation, shall:
(a) Publish in advance any regulations of general application relating to the matters of this Chapter, which it intends to adopt;
(b) Provide a reasonable opportunity to the interested persons and to the other Party to comment on the proposed general application regulation, and
(c) Provide a reasonable period of time between the publication of the final regulations of general application and its entry into force.
4. At the time a final regulation is adopted, each Party shall, to the extent practicable and in accordance with its legislation, attend in writing the substantive comments received from interested persons with respect to the proposed regulation. For greater certainty, each The party may address these comments collectively and publish them in a separate document the final regulation, on an official government website.
5. Each Party shall ensure that the rules of general application adopted or maintained by a self-regulated entity of that Party, are promptly published or otherwise placed disposition, in a way that allows interested persons to take cognizance of them and, When possible, it will publish them electronically.
6. Each Party shall maintain or establish, to the extent practicable, mechanisms appropriate to respond to inquiries of interested persons, as soon as possible practicable, with respect to the measures of general application covered by this Chapter, of compliance with its laws and regulations on transparency. The implementation of the obligation The establishment of appropriate mechanisms will take into account the budgetary and resources.
7. The relevant authorities of each Party shall make available to the public all information regarding the requirements, including any necessary documentation, for complete and submit applications related to the provision of financial services.
8. At the request of the applicant, the relevant authority of a Party shall inform it of the status of its request. When the authority requires additional information from the applicant, it will notify it without unjustified delay.
9. The relevant authority of each Party, within a reasonable time, will make a decision administration on a complete application from an investor in a financial institution or a financial institution of the other Party, relating to the provision of a financial service, and notify the applicant of the decision in a timely manner. An application will not be considered complete until that all the corresponding hearings have been held and all the necessary information has been received. At the request of the interested party, the relevant authority will inform him of the status of his request. When the authority requires additional information from the applicant, it will notify it without unjustified delay.
Article 9.9. Information Exchange
1. The Parties shall make their best efforts to establish an exchange process for information on financial services, especially in prudential regulations and consolidated supervisory regimes, subject to the secrecy laws of each Party and confidentiality of information.
2. The Parties shall make their best efforts to establish an exchange process for information among national regulatory or supervisory authorities, and will cooperate on matters of advice on prudential regulation, in order to:
(a) Agree on the best international practices related to the system financial and monetary;
(b) Establish work programs for the exchange of information on matters that be part of the recommendations of the Committee on Payments and Infrastructures of Market of the Bank of International Settlements and of the International Organization of Securities Commissions (IOSCO);
(c) Establish information exchange processes in line with the principles of the Basel Committee on Banking Supervision to prevent and investigate irregular transactions, including those related to money laundering and financing of terrorism and drug trafficking.
3. Each authority will only share the information that, to the same extent, is provided by the other authority, observing, in any case, the legislation to which they are subject
Article 9.10. Self-regulated Entities
1. Where a Party requires a financial institution to be a member of or participate in a self-regulatory entity or any other association for service providers financial services of the other Party to provide financial services on an equivalent basis to financial service providers of the Party, or where the Party directly or indirectly provides such entities, privileges or advantages in the supply of financial services the Party shall ensure that such entities accord national treatment to financial service providers of the other Party, established in the territory of the Party.
2. For greater certainty, nothing in this Article prevents entities of a Party to establish its non-discriminatory rules, which shall not be construed as an act of the Party.
Article 9.11. Payment and Clearing Systems
1. In accordance with the terms and conditions granting national treatment, each Party shall grant financial institutions of the other Party established in its territory access to the payment and clearing systems administered by public entities, as well as access to official means of financing and refinancing available in the course of operations normal commercials. This Article is not intended to grant access to the facilities of the the Party's lender of last resort.
2. For greater certainty, nothing in this Article prevents the Parties establish non-discriminatory regulatory requirements.
Article 9.12. Local Currency Payment System (lcp)
1. The Parties reaffirm the importance of removing barriers to trade and of strengthening and deepening regional integration, and leave it to their monetary authorities to analyse the desirability of establishing an LCP between Brazil and Chile.
2. In case they decide to be viable and of mutual interest, the Central Bank of Chile - in use of the attributions conferred by the Constitutional Organic Law that governs it - and the Central Bank of Brazil, are authorized to sign a bilateral agreement that establishes the parameters for its operation.
3. Nothing in this Chapter shall be construed to require central banks to establish an LCP.
Article 9.13. Data Processing
1. Subject to prior authorization from the regulator or relevant authority, when required, Each Party shall allow the financial institutions of the other Party to transfer information to the inside or outside the territory of the Party, using any of the means authorized in it, for its processing, when it is necessary to carry out the ordinary activities of business of those institutions.
2. For greater certainty, when the information referred to in paragraph 1 is composed of or contains personal data, the transfer of such information will be carried out in accordance with with the legislation on the protection of persons with respect to the transfer and processing of personal data of the Party in or from whose territory the information is transferred.
3. Nothing in this Chapter shall be construed as preventing the Parties from establishing specific requirements for the processing of data abroad, including guarantees of access to information.
Article 9.14. Special Formalities and Information Requirements
1. Nothing in Article 9.3 shall be construed as preventing a person from Party adopts or maintains any measure that prescribes special formalities in relation to an investment, such as the requirement that the investors be residents of the Party or that investments are constituted in accordance with the laws or regulations of the Party, provided that such formalities do not significantly impair the protection granted by a Party to investors of the other Party and investments in accordance with this Chapter.
2. Notwithstanding the provisions of Article 9.3, a Party may require an investor of the another Party or a financial institution of the other Party, which provides information regarding that investment, exclusively for informational or statistical purposes. The Party shall protect Any disclosure of information that is confidential and that could negatively affect the competitive situation of the investor or of the investment. Nothing in this paragraph shall be interpret as an impediment for a Party to obtain or disclose information regarding the fair and good faith application of its legislation.
Article 9.15. Joint Committee
1. For the purposes of this Chapter, the Joint Committee shall be that established in Article 8.18. (Joint Committee for the Administration of the Chapter), and shall have the functions indicated in the Article 8.18.4 (b), (c) and (d) (Joint Committee for the Administration of the Chapter).
2. The Joint Committee provided for in Article 8.18 (Joint Committee for Administration of the Chapter) will be directed by the officials of the authorities established in Annex IV and, where applicable, by other regulators or financial supervisors in the exercise of following functions and responsibilities:
(a) Supervise the administration and implementation of this Chapter, and
(b) Attempt to resolve issues or controversies relating to investments in a manner friendly, in accordance with the procedures established in Article 9.17.
3. For the exercise of the functions and responsibilities indicated in the previous paragraph, the Joint Committee may establish a specific internal regulation and will meet once a year, or as often as you remember.
Article 9.16. National Focal Points or Ombudsmen
1. Each Party shall have a single National Focal Point or Ombudsman, whose principal responsibility will be the support to investors in financial services of the other Party in their territory.
2. The National Focal Points or Ombudsmen shall be the same as those designated in Article 8.19 (National Focal Points or Ombudsmen).
3. The National Focal Point, respecting the competences of regulators and supervisors financial, among other responsibilities, should:
(a) Meet the recommendations of the Joint Committee, when dealing with the subjects provided in Article 9.15.2;
(b) Manage the inquiries of the other Party or of investors in institutions of the other Party, and inform interested parties about the results of their managements
(c) Provide timely and useful information on investment regulation issues, in general or in specific projects, when requested, and
(d) Inform the Joint Committee about its activities and actions, whenever coming.
Article 9.17. Consultations and Direct Negotiations for the Prevention of Controversies
1. A Party may request in writing consultations with the other Party, with respect to any issue related to this Chapter that affects financial services. The other Party shall provide due consideration to the request. The Parties shall inform the Joint Committee of the results of the consultations.
2. The consultations shall be conducted by the officials of the authorities established in the Annex IV and shall be carried out in accordance with Article 8.24 (Consultations and Direct Negotiations for the Prevention of Controversies).
3. A Party may refuse to discuss a consultation regarding an investment in financial institutions if an investor from a non-Party or from the denying country is owner or controlling the financial institution established in the territory of the Party, or the has substantial activities in the territory of the Party.
4. Nothing in this Article shall be construed as obliging the regulatory authorities to participate in consultations under paragraph 1, to disclose information, or act in a manner that could interfere with specific regulatory matters, supervision, administration or application of measures.
5. Thing in this Article shall be construed as requiring a Party to repeal its relevant legislation in relation to the exchange of information between financial regulators, or the requirements of an agreement or agreement between the authorities of the Parties.
Article 9.18. Arbitration between the Parties
1. Upon completion of the procedure provided in Article 9.17 without the controversy has been resolved, either Party may request in writing to the other Party the establishment of an arbitral tribunal to decide on the same subject matter of the consultations referred to in Article 9.17, in accordance with the provisions of Annex I (Arbitration between the Parties) of Chapter 8 (Cooperation and Facilitation of Investments).
2. Annex I (Arbitration between the Parties) of Chapter 8 (Cooperation and Facilitation of Investments) is applied, in the terms modified by this Article, to the arbitrations that arise from the application of this Chapter, mutatis mutandis.
3. For the purposes of Article 2 of Annex I (Arbitration between the Parties) of Chapter 8 (Cooperation and Facilitation of Investments), consultations held under of this Article with respect to a measure or matter constitute the consultations that it makes Reference Article 8.24 (Direct Consultations and Negotiations for the Prevention of Controversies), unless the Parties agree otherwise.
4. For the purposes of Article 4.5 (a) of Annex I (Arbitration between the Parties) of Chapter 8 (Cooperation and Facilitation of Investments), the arbitrators of financial services must have specialized knowledge or experience in financial law or practice in services financial institutions, which may include the regulation of financial institutions, unless the Parties so Agree otherwise.
5. Neither Party may resort to the dispute settlement mechanism provided for in Chapter 22 (Dispute Settlement) regarding any matter arising from this Chapter.
Article 9.19. General Provisions
Notwithstanding its ordinary meetings, after ten (10) years of entering into strength of this Agreement, or earlier if deemed necessary, the Joint Committee will conduct a review of the implementation of this Chapter, and make additional recommendations if necessary.
Annex I . Brazil Financial Regulators
1. For greater certainty, the obligations and commitments contained in this Chapter do not replace or repeal the provisions of Law 4.131/1962 (foreign capital) and the Law 4,595/1964 (monetary, credit and exchange rate policy, legal mandate from the Central Bank of Brazil), or the rules that replace them.
2. In applying measures under this Annex, Brazil, as set out in its legislation, may not discriminate between Chile and any third country with respect to same nature.
Annex II. Chile DL 600
1. The obligations and commitments contained in this Chapter do not apply to the Decree Law 600, Foreign Investment Statute, or the rules replacing it, (hereinafter called "DL 600"), and to Law No. 18.657, which authorizes the creation of the Investment Fund of Foreign Capital, with respect to:
(a) The right of the Foreign Investment Committee or its successor to accept or reject applications to invest through an investment contract under the DL 600 and the right to regulate the terms and conditions of foreign investment under the DL 600 and Law No. 18.657. The authorization and execution of an investment contract under the DL 600 by an investor in Brazil or your investment does not create any rights on the part of the investor or his investment to carry out particular activities in Chile.
(b) The right to maintain existing requirements on transfers from Chile of proceeds from the sale of all or part of an investment by an investor in a Part or full or partial liquidation of the investment, which may occur in a period not to exceed:
(i) In the case of an investment made in accordance with DL 600, one (1) year from the date of transfer to Chile; or
(ii) In the case of an investment made pursuant to Law No. 18.657, five (5) years from the date of transfer to Chile. Law No. 18,657 was repealed on May 1, 2014 by Law No. 20,712. The transfer requirement set forth in this subparagraph shall only apply to investments made pursuant to Law No. 18,657 prior to May 1, 2014 and not to investments made pursuant to Law No. 20,712; and
(c) The right to adopt measures, consistent with this Annex, establishing special voluntary investment programs in the future, in addition to the general regime for foreign investment in Chile, except that such measures may restrict transfers from Chile of the proceeds from the total or partial sale of an investment of an investor of another Party or from the total or partial liquidation of the investment, for a period not to exceed five (5) years from the date of transfer to Chile.
2. For greater certainty, except to the extent that paragraph 1(b) or (c) constitutes an exception to Article 8.11 (Transfers), an investment that enters into an investment contract under DL 600, through Law 18.657, or through any special voluntary investment program, shall be subject to the obligations and commitments of this Chapter to the extent that it is an investment under this Chapter.
Annex III. Chile Transfers
1. Chile reserves the right of the Central Bank of Chile to maintain or adopt measures in accordance with its Organic Constitutional Law (Law No. 18,840) or other legal norms to ensure the stability of the currency and the normal functioning of internal and external payments.
For these purposes, the Central Bank of Chile is empowered to regulate the amount of money and credit in circulation, the execution of credit operations and international changes. It is also empowered to issue rules on monetary, credit, financial and international exchange rates. These measures include, among others, the establishment of requirements restricting or limiting current payments and transfers (capital movements) to or from Chile, as well as the operations related to them, such as establishing that deposits, investments or credits coming from or destined to foreign countries are subject to the obligation of maintaining a legal reserve.
2. In applying measures under this Annex, Chile, as provided for in its legislation, may not discriminate between Brazil and any third country with respect to transactions of the same nature.
3. For greater certainty, this Annex applies to transfers covered by Article 8.11 (Transfers).
The authorities of each Party responsible for financial services are:
(a) For Brazil, the Banco Central do Brasil, and
(b) For Chile, the Ministry of Finance.
Chapter 10. ELECTRONIC COMMERCE
Article 10.1. Definitions
For the purposes of this Chapter:
personal data means any information about an identified or identifiable natural person;
trade administration documents means forms that a Party issues or controls, which have to be completed by or for an importer or exporter in connection with the importation or exportation of goods;
advanced electronic signature means data in electronic form attached to an electronic document that makes it possible to identify the signatory or signatory, in accordance with the legal system of each Party;
qualified electronic signature means an advanced electronic signature created by a cryptographic device with a high level of security for the creation of electronic signatures and based on a qualified signature certificate, issued through the physical presence of the natural person or legal representatives of the legal person.
computer facilities means computer servers and storage devices for processing or storing information for commercial use;
unsolicited commercial electronic message means an electronic message that is sent for commercial or advertising purposes without the consent of the recipients, or against the explicit will of the recipient, using an Internet service or, in accordance with the Party's legal system, by other telecommunications services, and
electronic transmission or electronically transmitted means a transmission made using any electromagnetic means, including transmissions by optical means.
Article 10.2. Scope of Application and General Provisions
1. This Chapter shall apply to measures adopted or maintained by a Party affecting trade by electronic means.
2. This Chapter shall not apply to:
(a) public procurement;
(b) subsidies or concessions provided by a Party, including loans, guarantees and insurance supported by States;
(c) information held or processed by or on behalf of a Party, or measures related to such information, including measures related to its compilation, or
(d) financial services, as defined in Article XII of the Fifty-third Additional Protocol to ACE No. 35.
3. For greater certainty, this Chapter is subject to the provisions, exceptions or non-conforming measures set forth in other chapters or annexes of this Agreement or in other relevant treaties entered into between the Parties.
4. The Parties recognize the economic potential and opportunities provided by electronic commerce.
5. Considering the potential of electronic commerce as a tool for social and economic development, the Parties recognize the importance of:
(a) the clarity, transparency and predictability of their national regulatory frameworks to facilitate, to the extent possible, the development of electronic commerce;
(b) encourage the adoption of initiatives that foster innovation and legal certainty, including through private sector self-regulatory measures, to promote confidence in electronic commerce, taking into account the interests and rights of users;
(c) interoperability and innovation to facilitate e-commerce;
(d) ensure that international and national e-commerce policies take into account the interests of all users, including businesses, consumers, non-governmental organizations and relevant public institutions;
(e) facilitate access to digital technologies in order to increase the participation of MSMEs in e-commerce;
(f) guaranteeing the security of users of electronic commerce, as well as their right to the protection of personal data, and
(g) extend protection with respect to subjects that encourage, intermediate the purchase or offer products or services for consumption.
6. Each Party shall endeavor to adopt measures to facilitate trade conducted by electronic means.
7. The Parties recognize the importance of avoiding barriers that constitute a disguised restriction on trade conducted by electronic means. Taking into account its domestic policy objectives, each Party shall endeavor to avoid measures that:
(a) hinder commerce conducted by electronic means, or
(b) have the effect of treating trade conducted by electronic means more restrictively than trade conducted by other means.
Article 10.3. Customs Duties
1. Neither Party shall impose customs duties on electronic transmissions between a person of one Party and a person of the other Party.
2. For greater certainty, paragraph 1 shall not prevent a Party from imposing internal taxes, fees or other charges on electronically transmitted content, provided that such taxes, fees or charges are imposed in a manner consistent with this Agreement.
Article 10.4. Principle of Non-Discrimination
The Parties recognize that there is an important debate in international fora, such as the WTO, on the application of non-discriminatory treatment in trade conducted by electronic means. Accordingly, the Parties undertake to jointly evaluate the results of the discussions in these international fora in order to decide on the eventual incorporation into this Chapter of rules on non-discrimination of electronically transmitted content.
Article 10.5. Legal Framework for Electronic Transactions
1. Each Party shall maintain a legal framework governing electronic transactions that is compatible with internationally recognized instruments.
2. Each Party shall endeavor to:
(a) avoid regulatory burdens that constitute disguised restrictions on electronic transactions, and
(b) facilitate the opinions of interested parties in the development of its legal framework for electronic transactions.
Article 10.6. Advanced or Qualified Electronic Signatures
1. A Party shall not deny the legal validity of an advanced or qualified electronic signature, according to the legal system of each Party, solely on the basis that it is made by electronic means, unless otherwise expressly provided for in its respective legal system.
2. No Party shall adopt or maintain advanced or qualified electronic signature measures that:
(a) prohibit the parties to an electronic transaction from mutually determining the appropriate signature certification methods for that transaction, or
(b) prevent the parties to an electronic transaction from having the opportunity to prove, before judicial or administrative authorities, that their transaction complies with any legal requirements regarding the signature.