2. Awards shall be enforced in accordance with the domestic law of the Party in whose territory the investment was made.
3. Each Party shall provide for the proper enforcement of an award in its territory.
4. Where a tribunal renders a final award against the respondent, the Tribunal may only award restitution or monetary damages and interest as appropriate; it may also award costs and attorneys' fees in accordance with this Article and the applicable arbitration rules. The Tribunal shall not have jurisdiction to rule on the legality of the measure as a matter of domestic law and shall not be authorized to order the payment of punitive damages.
5. Subject to paragraph 6 and to the review procedure applicable to an interim award, the disputing party shall promptly abide by and comply with the award.
6. The disputing party may not request enforcement of the final award until: (a) in the case of a final award rendered under the ICSID Convention:
(i) one hundred and twenty (120) days have elapsed from the date on which the award was rendered and no disputing party has requested revision or annulment of the award; or
(ii) the review or annulment proceedings have been concluded; and
(b) in the case of a final award rendered under the ICSID Additional Facility Rules or the UNCITRAL Arbitration Rules or the corresponding arbitration rules selected:
(i) ninety (90) days have elapsed since the date on which the award was rendered and no proceeding to revise, set aside or annul the award has been instituted by any disputing party; or
(ii) a Tribunal has dismissed or admitted an application for revision, revocation or annulment of the award and this decision cannot be appealed.
7. Where the respondent fails to comply with or abide by a final award, upon delivery of a request by the Party of the claimant, a panel shall be established in accordance with Article 18.11 (Request for Establishment of Arbitral Tribunal). The requesting Party may request in such proceedings:
(a) a determination that non-compliance or disregard of the terms of the final award is contrary to the obligations of this Agreement; and
(b) in accordance with the procedures set forth in Article 18.17 (Draft Award), a decision that the Respondent abide by or comply with the final award.
8. A disputing party may seek enforcement of an arbitral award under the ICSID Convention, the New York Convention or the Inter-American Convention, whether or not proceedings under paragraph 7 have been instituted.
9. For the purposes of Article I of the New York Convention and Article I of the Inter-American Convention, a claim submitted to arbitration under this Section shall be deemed to arise out of a commercial relationship or transaction.
Article 12.30. General Provisions
Time at which the claim is considered to be subject to the arbitration procedure
1. A claim is deemed to be submitted to arbitration under the terms of this Section when the claimant's request for arbitration (9) ("request for arbitration"):
(a) has been received by the Secretary-General pursuant to Article 36(1) of the ICSID Convention;
(b) has been received by the Secretary-General pursuant to Article 2 of Part C of the ICSID Additional Facility Rules; or
(c) has been received by the disputing party in accordance with the notice of arbitration under the UNCITRAL Arbitration Rules.
Delivery of the request for arbitration and other documents 2. The delivery of the request for arbitration and other documents to a Party shall be made at the place designated by it in Annex 12.A or at the place notified by the relevant Party to the Commission and published by the Commission as an annex to the Treaty.
Annex 12.A. Delivery of Documents to a Party under Section B
El Salvador
Notices and other documents relating to disputes under Section B shall be served in El Salvador by delivery to:
Directorate of Trade Treaties Administration Ministry of Economy Alameda Juan Pablo Il and Calle Guadalupe Building C1-C2, Master Plan Government Center San Salvador, El Salvador
Guatemala Notices and other documents relating to disputes under Section B shall be served in Guatemala by delivery to:
Directorate of Foreign Trade Administration Ministry of Economy 8a. Av. 10-43 Zona 1 Guatemala, Guatemala
Honduras Notices and other documents relating to disputes under Section B shall be served in Honduras by delivery to:
General Directorate of Economic Integration and Trade Policy Secretariat of State in the Offices of Industry and Trade Boulevard José Cecilio del Valle San José Building, former Fenaduanah building Tegucigalpa, Honduras
Colombia Notices and other documents relating to disputes under Section B shall be served in Colombia by delivery to:
Foreign Investment and Services Directorate Ministry of Commerce, Industry and Tourism Calle 28 #13 .A-15 Bogota D.C., Colombia
Chapter 13. CROSS-BORDER TRADE IN SERVICES
Article 13.1. Definitions
For the purposes of this Chapter:
trade cross-border trade from services or supply cross-border of services means the supply of a service:
(a) from the territory of one Party to the territory of the other Party;
(b) in the territory of a Party by a person of that Party, to a service consumer of the other Party; or
(c) by a national of a Party in the territory of the other Party;
but does not include the supply of a service in the territory of a Party through an investment, as defined in Article 12.1 (Definitions);
company means a "company" as defined in Chapter 2 (General Definitions) and a branch of a company;
enterprise of a Party means an enterprise incorporated or organized under the laws of a Party and branches located in the territory of a Party and carrying on business therein;
service supplier of a Party means a person of the Party intending to supply or supplying a service; (1)
specialized air services means any air service other than transportation, such as firefighting, scenic flying, spraying, aerial surveying, aerial mapping, aerial photography, aerial photography, parachute service, glider towing, helicopter services for log transport and construction, and other air services related to agriculture, industry and inspection; and
professional services means services that for their provision require higher education, related to a specific area of knowledge, equivalent training or experience (2) and whose exercise is authorized or restricted by a Party, but does not include services provided by persons engaged in a trade or to crew members of merchant ships and aircraft.
Article 13.2. Scope of Application
1. This Chapter applies to measures adopted or maintained by a Party affecting cross-border trade in services supplied by service suppliers of the other Party. Such measures include those affecting:
(a) the production, distribution, marketing, sale and supply of a service;
(b) the acquisition or use of, or payment for, a service;
(c) access to and use of distribution systems, transport or telecommunication networks and services related to the supply of a service;
(d) the presence in its territory of a service supplier of the other Party; and
(e) the provision of a bond or other form of financial guarantee as a condition for the provision of a service.
2. For the purposes of this Chapter, "measures adopted or maintained by a Party" means measures adopted or maintained by:
(a) central or local governments and authorities; and
(b) non-governmental institutions in the exercise of the powers delegated to them by central or local authorities or governments.
3. Articles 13.5, 13.8 and 13.9 shall apply to measures of a Party affecting the supply of a service in its territory by a covered investment. (3)
4. This Chapter does not apply to:
(a) cross-border financial services;
(b) public procurement carried out by a State Party or enterprise;
(c) air services, including domestic and international air transport services, scheduled and non-scheduled, as well as related support services for air services, except:
(i) aircraft repair and maintenance services during the period in which an aircraft is removed from service;
(ii) specialized air services; and (iii) computerized reservation system (CRS) services (4); and
(d) subsidies or grants provided by a Party, including government-supported loans, guarantees and insurance.
Annex 13.2 (4) (d) sets forth an understanding of the Parties with respect to subparagraph (d).
5. This Chapter does not impose any obligation on a Party with respect to a national of the other Party seeking to enter its labor market or to have permanent employment in its territory, or to confer any rights on that national with respect to such access or employment.
6. This Chapter does not apply to services supplied in the exercise of governmental authority in the territory of a Party. A "service supplied in the exercise of governmental authority" means any service supplied neither on a commercial basis, nor in competition with one or more service suppliers.
Article 13.3. National Treatment
Each Party shall accord to services and service suppliers of the other Party treatment no less favorable than that it accords, in like circumstances, to its own services or service suppliers.
Article 13.4. Most-Favored-Nation Treatment
Each Party shall accord to services and service suppliers of the other Party treatment no less favorable than that it accords, in like circumstances, to services and service suppliers of any other Party or of a non-Party.
Article 13.5. Market Access
No Party may adopt or maintain measures that:
(a) impose limitations on:
(i) the number of service suppliers, either in the form of numerical quotas, monopolies, exclusive suppliers of the total value of assets or service transactions in the form of numerical quotas or by requiring an economic needs test;
(ii) the total number of service operations or the total quantity of service output, expressed in terms of designated numerical units, in the form of numerical quotas or the requirement of an economic needs test; (5) or
(iii) the total number of natural persons who may be employed in a given service sector or who may be employed by a service provider and who are necessary for the supply of a specific service and are directly related to it, in the form of numerical quotas or the requirement of an economic needs test; or
(b) restrict or prescribe the specific types of legal entity or joint venture through which a service supplier may supply a service.
Article 13.6. Local Presence
No Party may require the service supplier of the other Party to establish or maintain representative offices or other business or to reside in its territory as a condition for the cross-border supply of a service.
Article 13.7. Nonconforming Measures
1. Articles 13.3, 13.4, 13.5 and 13.6 do not apply to:
(a) any existing non-conforming measure maintained by a Party in:
(i) the central level of government as provided by that Party in its Schedule to Annex I; or
(ii) a local level of goverment;
(b) the continuation or prompt renewal of any nonconforming measure referred to in subparagraph (a); or
(c) the modification of any non-conforming measure referred to in subparagraph (a), provided that such modification does not diminish the degree of conformity of the measure, as in effect immediately prior to the modification, with Articles 13.3, 13.4, 13.5 or 13.6.
2. Articles 13.3, 13.4, 13.5 or 13.6 do not apply to any measures that a Party adopts or maintains with respect to sectors, subsectors or activities, as set out in its Schedule to Annex Il.
3. Article 13.4 does not apply to treatment accorded by a Party in accordance with international treaties or conventions listed in Annex III.
4. The Parties shall establish procedures for a Party to notify the other Party and include in its relevant lists, modifications to measures referred to under paragraphs 1 and 2 of this Article.
5. Through future negotiations that may be convened by the Commission, the Parties shall deepen the liberalization achieved in the different services sectors, with a view to achieving the elimination of the remaining restrictions listed in accordance with paragraphs 1 and 2 of this Article.
Article 13.8. National Regulations (6)
1. Where a Party requires authorization for the supply of a service, the competent authorities of the Party shall, within a reasonable time after the submission of an application considered complete under its laws and regulations, inform the applicant of the decision on its application. At the request of the applicant, the competent authorities of the Party shall, without undue delay, provide information concerning the status of the application. This obligation shall not apply to authorization requirements that are covered by the scope of Article 13.7.
2. In order to ensure that measures relating to qualification requirements and procedures, technical standards and licensing requirements do not constitute unnecessary barriers to trade in services, each Party shall endeavor to ensure, as appropriate to each specific sector, that any such measures it adopts or maintains:
(a) based on objective and transparent criteria, such as competence and capacity to provide the service;
(b) are not more burdensome than necessary to ensure quality of service; and
(c) in the case of licensing procedures, do not in themselves constitute a restriction on the supply of the service.
3. If the results of negotiations relating to Article Vl:4 of the GATS (or the results of any similar negotiations conducted in another multilateral forum in which the Parties participate) enter into force for each Party, this Article shall be modified, as appropriate, following consultations between the Parties, so that those results enter into force under this Agreement. The Parties shall coordinate, as appropriate, in such negotiations.
Article 13.9. Transparency at the Development and Application of Regulations (7)
In addition to Chapter 16 (Transparency):
(a) each Party shall establish or maintain appropriate mechanisms to respond to inquiries from interested persons concerning its regulations relating to matters covered by this Chapter;
(b) after consultation with an interested person, if a Party does not give advance notice or opportunity to comment, it shall, to the extent possible, provide written reasons for doing so;
(c) at the time of adopting final regulations relating to the subject matter of this Chapter, each Party shall respond in writing, to the extent practicable, including upon request, to substantive comments received from interested persons with respect to the proposed regulations; and
(d) to the extent possible, each Party shall allow a reasonable period of time between the publication of final regulations and the date on which they enter into force.
Article 13.10. Recognition
1. For the purposes of compliance, in whole or in part, with its standards or criteria for the authorization, licensing or certification of service suppliers, and subject to the requirements of paragraph 4 of this Article, a Party may recognize education or experience obtained, requirements met or licenses or certificates granted in a particular country. Such recognition, which may be achieved through harmonization or otherwise, may be based on an agreement or arrangement with the country concerned or may be agreed autonomously.
2. When a Party recognizes, autonomously or by means of an agreement or arrangement, the education or experience obtained, the requirements met, or licenses or certificates granted in the territory of a non-Party, nothing in Article 13.4 shall be construed to require the Party to accord such recognition to education or experience obtained, requirements met, or licenses or certificates granted in the territory of the other Party.
3. A Party that is a party to an agreement or convention of the type referred to in paragraph 1 of this Article, existing or future, shall provide adequate opportunities to the other Party, if that Party is interested in negotiating its accession to such an agreement or convention or in negotiating agreements or conventions comparable thereto. Where a Party grants recognition autonomously, it shall provide adequate opportunities for the other Party to demonstrate that education, experience, licenses or certificates obtained or requirements fulfilled in the territory of that other Party should be subject to recognition.
4. A Party shall not grant recognition in a manner that would constitute a means of discrimination between countries in the application of its standards or criteria for the authorization, licensing or certification of service suppliers or a disguised restriction on trade in services.
5. Annex 13.10 applies to measures adopted or maintained by a Party relating to the licensing or certification of professional service suppliers, as set out in the provisions of that Annex.
Article 13.11. Transfers and Payments
1. Each Party shall allow all transfers and payments related to the cross-border supply of services to be made freely and without delay to and from its territory.
2. Each Party shall allow such transfers and payments related to the cross-border supply of services to be made in a freely usable currency at the market rate of exchange prevailing at the time of transfer. 3. Notwithstanding paragraphs 1 and 2, a Party may condition or prevent the making of a transfer or payment, through the equitable, non-discriminatory and good faith application of its laws relating to:
(a) bankruptcy, insolvency or protection of creditors' rights;
(b) issuance, trading or operations of securities, futures, options or derivatives;
(c) financial reporting or record keeping of transfers when necessary to cooperate with law enforcement or financial regulatory authorities;
(d) criminal offenses; or
(e) guarantee of compliance with orders or rulings in judicial or administrative proceedings.
Article 13.12. Denial of Benefits
Upon notification and consultation, a Party may deny the benefits of this Chapter to:
(a) service suppliers of the other Party where the service is being supplied by an enterprise owned or controlled by persons of a non-Party and the enterprise does not have substantial business activities in the territory of the other Party; or
(b) service suppliers of the other Party where the service is supplied by an enterprise owned or controlled by persons of the denying Party and the enterprise has no substantial business activities in the territory of the other Party.
Article 13.13. Implementation
The Parties shall consult annually, or as otherwise agreed, to review the implementation of this Chapter and to consider other matters of mutual interest affecting trade in services.
Chapter 14.
ELECTRONIC COMMERCE
Article 14.1. Definitions for the Purposes of this Chapter:
authentication means the process or act of establishing the identity of a party to an electronic communication or transaction or ensuring the integrity of an electronic communication;
electronic means means the use of computerized processing;
carrier medium means any physical object designed primarily for use in storing a digital product by any method now known or later developed and from which a digital product can be perceived, reproduced or communicated, directly or indirectly, and includes, but is not limited to, an optical medium, floppy disk or magnetic tape;
digital products means computer programs, text, video, images, sound recordings and other products that are digitally encoded;' and
electronic transmission or electronically transmitted means the transfer of digital products using any electromagnetic or photonic means.
Article 14.2. General Provisions
1. The Parties recognize the economic growth and opportunity that electronic commerce generates, the importance of avoiding obstacles to its use and development, and the applicability of WTO rules to measures affecting electronic commerce.
2. For greater certainty, nothing in this Chapter shall prevent a Party from imposing internal taxes or other internal charges on domestic sales of digital products, provided that such taxes or charges are imposed in a manner consistent with this Agreement.
Article 14.3. Electronic Provision of Services
For greater certainty, the Parties affirm that measures affecting the supply of a service through the use of an electronic medium are within the scope of the
âFor clarity, digital products do not include digital representations of financial instruments, including money.
14-1
similar electronically transmitted digital products that are created, produced, published, stored, transmitted, contracted, commissioned or first made available on a commercial basis in the territory of a non-Party; or
(b) whose author, performer, producer, manager or distributor is a person of the other Party than it grants to similar electronically transmitted digital products whose author, performer, producer, manager or distributor is a person of a non-Party.
5. Paragraphs 3 and 4 do not apply to any non-conforming measure under Articles 12.12 (Non-Conforming Measures) and 13.7 (Non-Conforming Measures).