6. The Tribunal shall also allocate other reasonable costs, including the reasonable costs of legal representation and assistance, to be borne by the unsuccessful disputing party when it dismisses a claim and renders an award pursuant to Article 17.42 or 17.43. In other circumstances, the Tribunal shall determine the allocation of other reasonable costs, including the reasonable costs of legal representation and assistance among the disputing parties, taking into consideration the outcome of the proceedings and other relevant circumstances, such as the conduct of the disputing parties.
7. If only some parts of the claims have been successful, the costs shall be adjusted proportionately to the number or extent of the successful parts of the claims.
8. The Appeal Tribunal shall establish and apportion costs in accordance with this Article.
9. No later than one year after the date of entry into force of this Agreement, the Joint Committee shall adopt supplementary rules on fees for the purpose of determining the maximum amount of costs of legal representation and assistance that may be borne by specific categories of unsuccessful disputing parties, taking into account their financial resources.
10. The Tribunal shall issue a provisional award within 24 months of the date of submission of the claim. If that deadline cannot be respected, the Tribunal shall adopt a decision to that effect, which shall specify to the disputing parties the reasons for such delay and indicate an estimated date for the issuance of the provisional award.
Article 17.55. Appeal Procedure
1. Either disputing party may appeal a provisional award before the Appeal Tribunal within 90 days of its issuance. The grounds for appeal are:
(a) that the Tribunal has erred in the interpretation or application of the applicable law;
(b) that the Tribunal has manifestly erred in the appreciation of the facts, including, if relevant, the appreciation of the law of a Party; or
(c) those provided for in Article 52 of the ICSID Convention, in so far as they are not covered by subparagraph (a) or (b) of this paragraph.
2. The Appeal Tribunal shall reject the appeal if it finds that the appeal is unfounded. It may also reject the appeal on an expedited basis if it is clear that the appeal is manifestly unfounded.
3. If the Appeal Tribunal finds that the appeal is well founded, the decision of the Appeal Tribunal shall modify or reverse the legal findings and conclusions in the provisional award in whole or part. Its decision shall specify precisely how it has modified or reversed the relevant findings and conclusions of the Tribunal.
4. If the facts established by the Tribunal so permit, the Appeal Tribunal shall apply its own legal findings and conclusions to such facts and render a final decision. If that is not possible, it shall refer the matter back to the Tribunal.
5. As a general rule, the appeal proceedings shall not exceed 180 days from the date of formal notification of a disputing party’s decision to appeal until the date of issuance of the decision of the Appeal Tribunal. In the event that the Appeal Tribunal considers that it cannot issue its decision within that 180-day period, it shall inform the disputing parties in writing of the reasons for the delay together with an estimate of the period within which it shall issue its decision. The proceedings shall not, in any case, exceed 270 days.
6. A disputing party lodging an appeal shall provide security for the costs of appeal.
7. Articles 17.33, 17.44, 17.45, 17.46, 17.48 and, if relevant, other provisions of this Section, shall apply mutatis mutandis in respect of the appeal procedure.
Article 17.56. Final Award
1. A provisional award issued pursuant to this Section shall become final if neither disputing party has appealed the provisional award pursuant to Article 17.55.
2. If a provisional award has been appealed and the Appeal Tribunal has rejected the appeal pursuant to Article 17.55, the provisional award shall become final on the date of rejection of the appeal by the Appeal Tribunal.
3. If a provisional award has been appealed and the Appeal Tribunal has rendered a final decision, the provisional award as modified or reversed by the Appeal Tribunal shall become final on the date of issuance of the final decision of the Appeal Tribunal.
4. If a provisional award has been appealed and the Appeal Tribunal has modified or reversed the legal findings and conclusions of the provisional award and referred the matter back to the Tribunal, the Tribunal shall, after hearing the disputing parties, if appropriate, revise its provisional award to reflect the findings and conclusions of the Appeal Tribunal. The Tribunal shall be bound by the findings of the Appeal Tribunal. The Tribunal shall seek to issue its revised award within 90 days of receiving the decision of the Appeal Tribunal. The revised provisional award shall become final 90 days after the date of its issuance.
5. The final award shall include any final decision of the Appeal Tribunal rendered pursuant to Article 17.55.
Article 17.57. Enforcement of Awards
1. An award rendered pursuant to this Section shall not be enforceable until it has become final pursuant to Article 17.56. Final awards issued pursuant to this Section shall be binding upon the disputing parties and shall not be subject to appeal, review, setting aside, annulment or any other remedy (57).
2. Each Party shall recognise an award rendered pursuant to this Section as binding and enforce the pecuniary obligation within its territory as if it were a final judgement of a domestic tribunal or court of that Party.
3. The execution of the award shall be governed by the laws and regulations concerning the execution of judgments or awards in force where such execution is sought.
4. For greater certainty, Article 41.10 shall not prevent the recognition, execution and enforcement of awards rendered pursuant to this Section.
5. For the purposes of Article 1 of the New York Convention, final awards issued pursuant to this Section are arbitral awards relating to claims that are considered to arise from a commercial relationship or transaction.
6. For greater certainty, and subject to paragraph 1 of this Article, if a claim has been submitted to dispute settlement pursuant to subparagraph (a) of Article 17.30(2) of this Agreement, a final award issued pursuant to this Section shall qualify as an award under Section 6 of the ICSID Convention.
CHAPTER 18
CROSS-BORDER TRADE IN SERVICES
Article 18.1
Scope
1. This Chapter applies to measures of a Party affecting cross-border trade in services supplied by service suppliers of the other Party. Such measures include measures that affect:
(a) the production, distribution, marketing, sale and delivery of a service;
(b) the purchase or use of, or payment for, a service;
(c) the access to and use of, in connection with the supply of a service, services which are required by a Party to be offered to the public generally, including distribution, transport and telecommunications networks; and
(d) the provision of a bond or other form of financial security, as a condition for the supply of a service.
2. This Chapter does not apply to:
(a) financial services, as defined in Article 25.2;
(b) audio-visual services;
(1) For greater certainty, this does not prevent a disputing party from requesting the Tribunal to revise an award or to interpret an award in accordance with the applicable rules on dispute settlement where this possibility is available under the applicable rules.
(c) national maritime cabotage (58);
(d) domestic and international air services or related services in support of air services (59), whether scheduled or non-scheduled, and services directly related to the exercise of traffic rights, other than:
(i) aircraft repair and maintenance services during which an aircraft is withdrawn from service;
(ii) selling and marketing of air transport services;
(iii) computer reservation system (CRS) services; and
(iv) ground handling services;
(e) public procurement; and
(f) subsidies or grants provided by a Party or by a state-owned enterprise, including government-supported loans, guarantees and insurance.
Article 18.2
Definitions
For the purposes of this Chapter and Annexes 17-A, 17-B and 17-C:
(a) ‘aircraft repair and maintenance services’ means such activities when undertaken on an aircraft or a part thereof while it is withdrawn from service and do not include so-called line maintenance;
(b) ‘computer reservation system (CRS) services’ means services provided by computerised systems that contain information about air carriers' schedules, availability, fares and fare rules, through which reservations can be made or tickets may be issued;
(c) ‘cross-border trade in services’ or ‘cross-border supply of services’ means the supply of a service:
(i) from the territory of a Party into the territory of the other Party; or
(ii) in the territory of a Party to a service consumer of the other Party;
(d) ‘enterprise’ means a juridical person, branch or representative office set up through establishment;
(e) ‘ground handling services’ means the supply at an airport, on a fee or contract basis, of the following services: airline representation, administration and supervision; passenger handling; baggage handling; ramp services; catering, except for the preparation of food; air cargo and mail handling; fuelling of an aircraft; aircraft servicing and cleaning; surface transport; and flight operation, crew administration and flight planning; ground handling services do not include: self-handling; security; line maintenance; aircraft repair and maintenance; or management or operation of essential centralised airport infrastructure, such as de-icing facilities, fuel distribution systems, baggage handling systems and fixed intra-airport transport systems;
(2) Without prejudice to the scope of activities which may be considered as cabotage under the relevant national legislation, national maritime cabotage under this Chapter covers transportation of passengers or goods between a port or point located in Chile or a Member State and another port or point located in Chile or that same Member State, including on its continental shelf, as provided in the UN Convention on the Law of the Sea, and traffic originating and terminating in the same port or point located in Chile or a Member State.
(3) For greater certainty, air services or related services in support of air services include the following services: air transportation; services provided by using an aircraft whose primary purpose is not the transportation of goods or passengers, such as aerial fire-fighting flight training, sightseeing, spraying, surveying, mapping, photography, parachute jumping, glider towing, helicopter-lift for logging and construction, and other airborne agricultural, industrial and inspection services; the rental of aircraft with crew; and airport operation services.
(f) ‘juridical person of a Party’ means (60):
(i) for the EU Party:
(A) a juridical person constituted or organised under the law of the European Union or of at least one of its Member States and engaged in substantive business operations (61) in the territory of the European Union; and
(B) shipping companies established outside the European Union, and controlled by natural persons of a Member State, whose vessels are registered in, and fly the flag of, a Member State;
(ii) for Chile:
(A) a juridical person constituted or organised under the law of Chile and engaged in substantive business operations in the territory of Chile; and
(B) shipping companies established outside Chile, and controlled by natural persons of Chile, whose vessels are registered in, and fly the flag of, Chile;
(g) ‘selling and marketing of air transport services’ means opportunities for the air carrier concerned to sell and market freely its air transport services, including all aspects of marketing such as market research, advertising and distribution; these activities do not include the pricing of air transport services or the applicable conditions;
(h) ‘service’ means any service in any sector except services supplied in the exercise of governmental authority;
(i) ‘service supplied in the exercise of governmental authority’ means any service which is supplied neither on a commercial basis nor in competition with one or more service suppliers; and
(j) ‘service supplier of a Party’ means any natural or juridical person of a Party that seeks to supply or supplies a service.
Article 18.3
Right to regulate
The Parties reaffirm the right to regulate within their territories to achieve legitimate policy objectives, such as the protection of public health, social services, education, safety, the environment, including climate change, public morals, social or consumer protection, privacy and data protection, or the promotion and protection of cultural diversity.
Article 18.4
National treatment
1. Each Party shall accord to services and service suppliers of the other Party treatment no less favourable than the treatment it accords, in like situations, to its own services and service suppliers.
2. The treatment accorded by a Party under paragraph 1 means:
(a) with respect to a regional or local government of Chile, treatment no less favourable than the most favourable treatment accorded, in like situations, by that level of government to its own services and service suppliers;
(4) For greater certainty, the shipping companies referred to in this definition are only considered as juridical persons of a Party with respect to their activities relating to the supply of maritime transport services.
(5) In line with its notification of the Treaty establishing the European Community to the WTO (WT/REG39/1), the EU Party understands that the concept of ‘effective and continuous link’ with the economy of a Member State enshrined in Article 54 of the Treaty on the Functioning of the European Union is equivalent to the concept of ‘substantive business operations’.
(b) with respect to a government of, or in, a Member State, treatment no less favourable than the most favourable treatment accorded, in like situations, by that government to its own services and service suppliers.
3. A Party may meet the requirement set out in paragraph 1 by according to services and service suppliers of the other Party either formally identical treatment or formally different treatment to that it accords to its own services and service suppliers.
4. Formally identical or formally different treatment shall be considered to be less favourable if it modifies the conditions of competition in favour of services or service suppliers of a Party when compared to service suppliers of the other Party.
5. Nothing in this Article shall be construed as requiring a Party to compensate for inherent competitive disadvantages which result from the foreign character of the relevant services or services suppliers.
Article 18.5
Most-favoured-nation treatment
1. Each Party shall accord to services and service suppliers of the other Party treatment no less favourable than the treatment it accords, in like situations, to services and service suppliers of a third country.
2. Paragraph 1 shall not be construed as obliging a Party to extend to services and service suppliers of the other Party the benefit of any treatment resulting from measures providing for the recognition of standards, including of the standards or criteria for the authorisation, licensing or certification of a natural person or an enterprise for carrying out an economic activity, or of prudential measures.
3. For greater certainty, the treatment referred to in paragraph 1 does not include dispute resolution procedures or mechanisms provided for in other international treaties or trade agreements. The substantive provisions in other international treaties or trade agreements do not in themselves constitute ‘treatment’ as referred to in paragraph 1 and thus cannot give rise to a breach of this Article, absent measures adopted or maintained by a Party. Measures of a Party applied pursuant to such substantive provisions may constitute ‘treatment’ under this Article and thus give rise to a breach of this Article.
Article 18.6
Local presence
A Party shall not require a service supplier of the other Party to establish or maintain an enterprise or to be resident in its territory as a condition for the cross-border supply of a service.
Article 18.7
Market access
In the sectors or subsectors where market access commitments are undertaken, a Party shall not adopt or maintain, either on the basis of its entire territory or on the basis of a territorial subdivision, measures that:
(a) impose limitations on:
(i) the number of service suppliers, whether in the form of numerical quotas, monopolies, exclusive service suppliers or the requirement of an economic needs test;
(ii) the total value of service transactions or assets in the form of numerical quotas or the requirement of an economic needs test;
(iii) the total number of service operations or the total quantity of services output, expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test (62); or
(iv) the total number of natural persons that may be employed in a particular service sector or that a service supplier may employ and who are necessary for, and directly related to, the supply of a specific service in the form of numerical quotas or the requirement of an economic needs test; or
(b) restrict or require specific types of legal entity or joint venture through which a service supplier may supply a service.
Article 18.8
Non-conforming measures
1. Articles 18.4, 18.5 and 18.6 do not apply to:
(a) any existing non-conforming measure that is maintained by:
(i) for the EU Party:
(A) the European Union, as set out in Appendix 17-A-1;
(B) the central government of a Member State, as set out in Appendix 17-A-1;
(C) a regional level of government of a Member State, as set out in Appendix 17-A-1; or
(D) a local level of government; and
(ii) for Chile:
(A) the central government, as set out in Appendix 17-A-2;
(B) a regional level of government, as set out in Appendix 17-A-2; or
(C) a local level of government;
(b) the continuation or prompt renewal of any non-conforming measure referred to in subparagraph (a) of this paragraph; or
(c) a modification to any non-conforming measure referred to in subparagraph (a) of this paragraph, to the extent that the modification does not decrease the conformity of the measure, as it existed immediately before the amendment, with Articles 18.4, 18.5 and 18.6.
2. Articles 18.4, 18.5 and 18.6 do not apply to any measure of a Party with respect to sectors, sub-sectors or activities as set out in its schedule in Annex 17-B.
3. Article 18.7 does not apply to any measure of a Party with respect to committed sectors, subsectors or activities, as set out in Annex 17-C.
Article 18.9
Denial of benefits
A Party may deny a service supplier of the other Party the benefits of this Chapter if the denying Party adopts or maintains measures related to the maintenance of international peace and security, including the protection of human rights, which:
(a) prohibit transactions with that service supplier, or with a person who owns or controls that service supplier; or
(6) This subparagraph does not cover the measures of a Party that limit inputs for the supply of services.
(b) would be violated or circumvented if the benefits of this Chapter were accorded to that service supplier.
Article 18.10
Sub-Committee on Services and Investment
The Sub-Committee on Services and Investment (‘Sub-Committee’) is established pursuant to Article 8.8(1). When addressing matters related to services, the Sub-Committee shall monitor and ensure proper implementation of this Chapter, Chapters 19, 20, 21, 22, 23, 24 and 26 and Annexes 17-A to 17-I, 19-A, 19-B, 19-C, 21-A and 21-B.
CHAPTER 19
TEMPORARY PRESENCE OF NATURAL PERSONS FOR BUSINESS PURPOSES
Article 19.1
Scope
1. This Chapter applies to measures of a Party concerning the performance of economic activities through the entry and temporary stay in its territory of natural persons of the other Party who are business visitors for establishment purposes, investors, intra-corporate transferees, short-term business visitors, contractual services suppliers and independent professionals.
2. This Chapter does not apply to the sectors referred to in subparagraphs (b), (c) and (d) of Article 18.1(2).
3. This Chapter does not apply to measures of a Party affecting natural persons of the other Party seeking access to its employment market, or to measures regarding citizenship, nationality, residence or employment on a permanent basis.
4. Nothing in this Agreement shall prevent a Party from applying measures regulating the entry of natural persons of the other Party into, or their temporary stay in, its territory, including measures necessary to protect the integrity of, and to ensure the orderly movement of natural persons across, its border, provided that those measures are not applied in a manner as to nullify or impair the benefits accruing to the other Party under this Part of this Agreement.
5. The sole fact that a Party requires persons of the other Party to obtain a visa shall not be construed as nullifying or impairing the benefits accruing to the other Party under this Part of this Agreement.
6. To the extent that commitments are not undertaken under this Chapter, all requirements provided for in the law of a Party regarding the entry and temporary stay of natural persons shall continue to apply, including laws and regulations concerning the period of stay.
7. Notwithstanding this Chapter, all requirements provided for in the law of a Party regarding work and social security measures, including laws and regulations concerning minimum wages and collective wage agreements, shall continue to apply.
8. Commitments under this Chapter on the entry and temporary stay of natural persons for business purposes do not apply in cases where the intent or effect of the entry and temporary stay is to interfere with or otherwise affect the outcome of any labour or management dispute or negotiation, or the employment of any natural person who is involved in that dispute.
Article 19.2
Definitions
1. The definitions in Articles 17.2 and 18.2 apply to this Chapter and to Annexes 19-A, 19-B and 19-C, with the exception of the definition of investor of a Party in subparagraph (l) of Article 17.2(1).
2. For the purposes of this Chapter and Annexes 19-A, 19-B and 19-C:
(a) ‘business sellers’ means short-term business visitors who:
(i) are representatives of a service or goods supplier of a Party for the purposes of negotiating the sale of services or goods, or entering into agreements to sell services or goods for that supplier, including: attending meetings or conferences; engaging in consultations with business colleagues; and taking orders or negotiating contracts with an enterprise located in the territory of the other Party;
(ii) are not engaged in the supply of a service in the framework of a contract concluded between an enterprise that has no commercial presence in the territory of the Party where the short-term business visitors are staying temporarily, and a consumer in that territory; and