(a) to the extent practicable, permit an applicant to submit an application at any time throughout the year4;
4 For greater certainty, competent authorities are not required to start considering applications outside of their official working hours and working days.
(b) allow a reasonable period for the submission of an application if specific time periods for applications exist;
(c) initiate the processing of the application without undue delay;
(d) endeavour to accept applications in electronic format under the same conditions of authenticity as paper submissions; and
(e) accept copies of documents, which are authenticated in accordance with the Party’s domestic law, in place of original documents, unless they require original documents to protect the integrity of the authorisation process.
7. Each Party shall endeavour to make authorisation procedures and formalities as simple as possible and shall not unduly complicate or delay the provision of the service.
8. Each Party shall endeavour to establish the indicative timeframe for processing of an application and shall, at the request of the applicant and without undue delay, provide information concerning the status of the application.
X If the competent authorities consider an application incomplete for processing under the Party’s domestic laws and regulations, within a reasonable period of time, to the extent practicable:
(i) inform the applicant that the application is incomplete;
(ii) at the request of the applicant, identify the additional information required to complete the application, or otherwise provide guidance on why the application is considered incomplete; and
(iii) provide the applicant with the opportunity5 to provide the additional information that is required to complete the application;
5 Such opportunity does not require a competent authority to provide extensions of deadlines.
6 Authorisation fees do not include fees for the use of natural resources, payments for auction, tendering or other non-discriminatory means of awarding concessions, or mandated contributions to universal service provision.
however, if none of the above is practicable, and the application is rejected due to incompleteness, ensure that they so inform the applicant within a reasonable period of time.
9. Each Party shall ensure that its competent authorities, with respect to authorisation fees6 that they charge, provide applicants with a schedule of fees or information on how fee amounts are determined, and do not use the fees as a means of avoiding the Party’s commitments or obligations.
10. The competent authority should reach its decision in an independent manner and not be accountable to any person supplying the services for which the licence or authorisation is required.
11. Each Party shall ensure that the processing of an application, including reaching a final decision, is completed within a reasonable timeframe after the date of submission of a complete application and that the applicant is informed of the decision concerning the application, to the extent possible, in writing.
12. If an application is rejected by the competent authority, the applicant shall be informed, either at its own request or upon the competent authority’s initiative, in writing and without undue delay. To the extent practicable, the applicant shall be informed of the reasons for rejection of the application and of the timeframe for an appeal against this decision. An applicant should be permitted, within reasonable time limits, to resubmit an application.
13. Where examinations are required for an authorisation, the regulatory authority shall ensure such examinations at reasonably frequent intervals and provide a reasonable period of time to enable applicants to request to take the examination.
14. Each Party shall ensure that an authorisation, once granted, enters into effect without undue delay in accordance with the terms and conditions specified therein.
Article 18.14
Financial Services new to the Territory of a Party
1. Each Party shall permit a financial institution of the other Party, other than a branch, to supply any new financial service that the former Party would permit its own financial institutions to supply in accordance with its domestic law, in like situations, provided that the introduction of the new financial services does not require a new law or modification of an existing law.
2. A Party may determine the institutional and juridical form through which the new financial service may be supplied and may require authorisation for the supply of the service. Where such authorisation is required, a decision shall be made within a reasonable period of time and the authorisation may only be refused for prudential reasons.
3. This Article does not prevent a financial institution of a Party from applying to the other Party to consider authorising the supply of a financial service that is not supplied within either Party's territory. That application is subject to the law of the Party receiving the application and is not subject to the obligations of this Article.
Article 18.15
Self-regulatory Organisations
When a Party requires a financial institution or a cross-border financial service supplier of the other Party to be a member of, participate in, or have access to, a self-regulatory organization in order to provide a financial service in or into the territory of the first Party, it shall ensure that the self-regulatory organization observes the obligations of Articles 10.7 (National Treatment) and 10.9 (Most Favored Nation Treatment) of the Investment Chapter and Article 11.5 (National Treatment) and 11.6 (Most Favored Nation Treatment) of the Cross Border Trade in Services Chapter.
[Drafters note 2: references to articles will be define once the Chapter structure is agreed]
Article 18.16
Payment and clearing systems
Under terms and conditions that accord national treatment, each Party shall grant to financial institutions of the other Party established in its territory access to payment and clearing systems operated by public entities, and to official funding and refinancing facilities available in the normal course of ordinary business. This Article is not intended to confer access to the Party’s lender of last resort facilities.
Article 18.17
Financial Services Committee
1. The Parties hereby establish the Financial Services Committee (the Committee).
The Committee shall be composed of representatives of the Parties as set out in Annex XX (Authorities responsible for Financial Services).
2. The Committee shall:
(a) supervise the implementation of this Chapter;
(b) consider issues regarding financial services that are referred to it by a Party;
(c) carry out a dialogue on the regulation of the financial services sector with a view to improving mutual knowledge of the Parties' respective regulatory systems and to cooperate in the development of international standards; and
(d) participate in the dispute settlement procedures in accordance with Article 18.20 (Investment Disputes in Financial Services).
3. The Committee shall meet as agreed to assess the functioning of this Agreement as it applies to financial services. The Committee shall inform the Joint Council of the results of any meeting. Meetings may be held by any technological means available to the Parties.
Article 18.18
Consultations
1. A Party may request, in writing, consultations with the other Party regarding any matter arising under this Agreement that affects financial services. The other Party shall give sympathetic consideration to the request to hold consultations. The consulting Parties shall report the results of their consultations to the Committee.
2. Each Party shall ensure that when there are consultations pursuant to paragraph 1, its delegation shall include officials with the relevant expertise in the area covered by this Chapter as set out in Annex XX (Authorities responsible for Financial Services).
3. For greater certainty, nothing in this Article shall be construed to require a Party to derogate from its relevant law regarding sharing of information among financial regulators or the requirements of an agreement or arrangement between financial authorities of the Parties, or require regulatory authorities to take any action that would interfere with specific regulatory, supervisory, administrative, or enforcement matters.
4. Nothing in this Article shall be construed to impede that where a Party requires information for supervisory purposes concerning a financial institution in the other Party's territory or a cross-border financial service supplier in the other Party's territory, the Party may approach the competent regulatory authority in the other Party's territory to seek the information.
Article 18.19
Dispute settlement
1. Chapter 31 (Dispute Settlement), including Annexes X (Rules of Procedure) and XX (Code of Conduct), applies as modified by this Article to the settlement of disputes concerning the application or interpretation of the provisions of this Chapter.
2. In addition to the requirements set out in Article 31.7 (Requirements for Panellists – Dispute Settlement Chapter), panellists shall have expertise or experience in financial services law or practice, which may include the regulation of financial institutions, unless the Parties agree otherwise.
3. The Financial Services Committee shall recommend to the Joint Council the adoption of a list of at least 15 individuals, fulfilling the requirements set out in paragraph 2, who are willing and able to serve as panellists. The Joint Council shall adopt such list no later than six months after the date of entry into force of this Agreement. The list shall be composed of three sub-lists:
(a) one sub-list of individuals established on the basis of proposals by the European Union;
(b) one sub-list of individuals established on the basis of proposals by the Republic of Chile; and
(c) one sub-list of individuals that are not nationals of either Party and who shall serve as chairperson to the panel.
4. Each sub-list shall include at least five individuals. The Joint Council shall ensure that the list is always maintained at this minimum number of individuals.
5. For the purposes of this Chapter, the sub-lists referred to in paragraph 3 shall, after adoption, replace the sub-lists set out in paragraph 1 of Article 31.7 (List of Panellists – Dispute Settlement Chapter).
Article 18.20
Resolution of Investment Disputes in Financial Services
1. Section D (Resolution of Investment Disputes and Investment Court System) of Chapter 10 (Investment) applies, as modified by this Article, to:
(a) investment disputes pertaining to measures adopted or maintained by a Party relating to investors and their investments in financial institutions to which this Agreement applies and in which an investor claims that a Party has breached Article 18.3 (National Treatment), Article 18.5 (Most-Favoured-Nation Treatment), Articles 10.15 (Treatment of Investors and of Covered Investments), 10.18 (Transfers), Article 10.16 (Treatment in Case of Strife), or Article 10.17 (Expropriation); or
(b) investment disputes commenced pursuant to Chapter 10 (Investment) of this Agreement, in which Article 18.11 (Prudential Carve-Out) has been invoked.
2. In the case of an investment dispute pursuant to subparagraph 1(a), or if the respondent invokes Article 18.11 (Prudential Carve-Out) pursuant to subparagraph 1(b) within 60 days of the submission of a claim to the Tribunal in accordance with Article xxxx (Submission of a Claim to the Tribunal), the division of the Tribunal hearing the case may appoint, after consulting the disputing parties and pursuant to Article xxxx (Expert Reports), one or more experts from the list in Article 18.19 (SSDS in FS) to report to it on any factual issue concerning financial services matters raised by a disputing party in the proceedings.
3. In view of the importance of the right of a Party to adopt or maintain measures for prudential reasons, where such measures fall within the scope of the Article 18.11 (Prudential Carve-Out) shall apply as a valid defence to a claim based on any of the other provisions of this Agreement, including Article 10.15 (Treatment of Investors and of Covered Investments) of Chapter 10 (Investment). Following a request for consultations pursuant to Article […], the respondent may request in writing to the [Committee] that it determines whether and, if so, to what extent the measure which is the subject of the request for consultations is justified under Article 18.11 (Prudential Carve-Out). This referral shall be made as soon as possible after the reception of the request for consultations. Upon the referral to the [Committee] the periods of time referred to in Articles xxxx (Consultations), xxxx (Determination of the respondent) and xxxx (Timelines to file a claim)] shall be suspended.
4. In a referral pursuant to paragraph 3, the [Committee] shall attempt in good faith to make a determination. Any such determination shall be transmitted promptly to the disputing parties.
5. To the extent that the Committee determines that the measure is justified under Article 18.11 (Prudential Carve-Out), no claim may be submitted before the investment tribunal pursuant to Article […].
6. If the [Committee] has not made a determination within three months after the referral of the matter, the suspension of the periods of time referred to in paragraph 3 ceases to apply.
7. Failure of the respondent to make that request is without prejudice to the right of the respondent to assert Article 18.11 (Prudential Carve-Out) as a defence in a later phase of the proceedings. The Tribunal shall draw no adverse inference from the fact that the [Committee] has not agreed on a joint determination.
ANNEX XX
AUTHORITIES RESPONSIBLE FOR FINANCIAL SERVICES
The authorities for each Party responsible for financial services are:
(a) for EU, […]
(b) for Chile, the Ministry of Finance (Ministerio de Hacienda
Chapter 20. CAPITAL MOVEMENTS, PAYMENTS AND TRANSFERS AND TEMPORARY SAFEGUARD MEASURES (1)
Article 20.1
Objective and scope
The objective of this Chapter is to enable the free movement of capital and payments related to transactions liberalised under this Agreement.
Article 20.2
Current Account
Without prejudice to other provisions of this Agreement, each Party shall allow, in freely convertible currency and in accordance with the provisions of the Articles of the Agreement of the International Monetary Fund, as applicable, any payments and transfers with respect to transactions on the current account of the balance of payments that fall within the scope of this Agreement.
Article 20.3
Capital Movements
Without prejudice to other provisions of this Agreement, each Party shall allow, with regard to transactions on the capital and financial account of the balance of payments, the free movement of capital, for the purpose of liberalisation of investment and other transactions as provided for in Chapter 10 [Investment], Chapter 11 [Cross-border trade in services], and Chapter 18 [Financial Services].
Article 20.4
Application of laws and regulations relating to capital movements, payments or transfers
The provisions of Article 10.18 [Transfers] of Chapter 10 [Investment], Articles 20.1 and 20.2 of this Chapter shall not be construed as preventing a Party from applying its laws and regulations relating to:
(a) bankruptcy, insolvency, or the protection of the rights of creditors;
(b) issuing, trading or dealing in financial instruments such as securities, futures or derivatives;
(c) financial reporting or record keeping of capital movements, payments or transfers where necessary to assist law enforcement or financial regulatory authorities;
(d) criminal or penal offenses, deceptive or fraudulent practices;
(e) ensuring compliance with orders or judgments in judicial or administrative proceedings; or
(f) social security, public retirement or compulsory savings schemes.
2. The laws and regulations referred to in paragraph 1 shall be applied in an equitable and non-discriminatory manner, and not in a way that would constitute a disguised restriction on capital movements, payments or transfers.
Article 20.5
Temporary safeguard measures
In exceptional circumstances of serious difficulties for the operation of the European Union's economic and monetary union, or threat thereof, the European Union may adopt or maintain safeguard measures with regard to capital movements, payments or transfers for a period not exceeding six months. Those measures shall be limited to the extent that is strictly necessary.
Article 20.6
Restrictions in case of balance of payments and external financial difficulties
1. Where a Party experiences serious balance-of-payments or external financial difficulties, or threat thereof, it may adopt or maintain restrictive measures with regard to capital movements, payments or transfers 2.
2 For greater certainty, serious balance of payments or external financial difficulties, or threat thereof, may be caused among other factors by serious difficulties related to monetary or exchange rate policies, or threat thereof.
2. The measures referred to in paragraph 1 shall:
(a) be consistent with the Articles of the Agreement of the International Monetary Fund, as applicable;
(b) not exceed those necessary to deal with the circumstances described in paragraph 1;
(c) be temporary and shall be phased out progressively as the situation specified in paragraph 1 improves;
(d) avoid unnecessary damage to the commercial, economic and financial interests of the other Party;
(e) be non-discriminatory compared to third countries in like situations.
3. In the case of trade in goods, each Party may adopt restrictive measures in order to safeguard its external financial position or balance-of-payments. These measures shall be in accordance with the General Agreement on Trade and Tariffs (GATT) and the Understanding on the Balance of Payments provisions of the GATT 1994.
4. In the case of trade in services, each Party may adopt restrictive measures in order to safeguard its external financial position or balance of payments. These measures shall be in accordance with Article XII of the General Agreement on Trade in Services (GATS).
5. A Party maintaining or having adopted measures referred to in paragraphs 1 and 2 of this Article shall promptly notify them to the other Party.
6. If restrictions are adopted or maintained under this Article, the Parties shall promptly hold consultations in the [Committee on Trade in Services and Investment – to be adapted] unless consultations are held in other fora, to which both Parties are members. The consultations shall assess the balance-of-payments or external financial difficulty that led to the respective measures, taking into account, inter alia, such factors as:
(a) the nature and extent of the difficulties;
(b) the external economic and trading environment; and
(c) alternative corrective measures which may be available.
7. The consultations pursuant to paragraph 6 shall address the compliance of any restrictive measures with paragraphs 1 to 2. All relevant findings of statistical or factual nature presented by the IMF, where available, shall be accepted and conclusions shall take into account the assessment by the IMF of the balance-of-payments and the external financial situation of the Party concerned.