1. The Parties shall draw up, within eight months after the entry into force of this Treaty, a Protocol in which each Party shall include reservations to Articles 12-04 to 12-07 and 12-14.
2. Such reservations shall include measures with respect to which no Party shall increase the degree of nonconformity with those Articles as of the date of entry into force of this Agreement. Any amendment of any such measure shall not diminish the degree of conformity of the measure as in effect immediately prior to the amendment;
3. The reservations referred to in paragraph 1 shall contain the following elements:
a) sector refers to the sectors on which each Party has adopted a reservation;
b) sub-sector refers to the specific sector in which the reserve has been taken;
c) industrial classification refers to the activity covered by the reservation, in accordance with national industrial classification codes, where applicable;
d) type of reservation specifies the obligation from among those mentioned in paragraph 1, on which a reservation is taken;
e) level of government indicates the level of government that maintains the measure on which the reservation is maintained;
f) measures identifies the measures that apply to the sector, subsector or activities covered by the reserve;
g) description describes the coverage of the sector, subsector or activities covered by the reserve.
h) phasing out refers to commitments, if any, for liberalization after the date of entry into force of this Agreement.
4. In interpreting a reservation, all elements of the reservation will be considered.
5. Where a Party has established, in Chapters X, XI, XIll, XVI and XVII of this Agreement, a reservation to matters relating to the right of establishment, cross-border trade, national treatment, most-favored- nation treatment, and senior management and governing bodies, the reservation shall be deemed to be made to Articles 12-04 through 12-07 and 12-14, as the case may be, to the extent that the measure, sector, subsector or activity specified in the reservation is covered by this Chapter.
Article 12-16. Denial of Benefits.
A Party may deny in whole or in part the benefits under this Chapter to a financial service supplier of another Party or a cross-border financial service supplier of another Party, after notice and consultations in accordance with Articles 12-10 and 12-12, where the Party determines that the service is being supplied by an enterprise that does not carry on substantial business activities in the territory of either Party and that is owned or controlled by persons of a non-Party.
Article 12-17. Transfers.
1. Each Party shall permit all transfers relating to an investment in its territory of an investor of another Party to be made freely and without delay. Such transfers include:
a) profits, dividends, interest, capital gains, royalty payments, management fees, technical assistance and other charges, profits in kind and other amounts derived from the investment;
b) proceeds from the sale or liquidation, in whole or in part, of the investment;
c) payments made under a contract to which an investor or its investment is a party;
d) payments made in accordance with the article relating to expropriation and compensation; and
e) payments arising from the settlement of disputes between a Party and an investor of another Party.
2. Each Party shall permit transfers to be made in freely convertible currency at the market rate of exchange prevailing on the date of transfer for spot transactions in the currency to be transferred, subject to the provisions of Article 12-18.
3. No Party may require its investors to make transfers of their income, earnings, or profits or other amounts derived from or attributable to investments made in the territory of another Party.
4. Notwithstanding the provisions of paragraphs 1 and 2, each Party may prevent transfers by equitable, non-discriminatory application of its laws in the following cases:
a) bankruptcy, insolvency or protection of creditors' rights;
b) issuance, trading, and operations of securities;
c) criminal or administrative offenses;
d) reports of currency transfers or other monetary instruments;
e) guarantee of compliance with the rulings in a contentious proceeding.
5. Notwithstanding paragraph 1, each Party may restrict transfers of earnings in kind in circumstances where it would otherwise restrict such transfers under this Chapter.
6. Each Party may retain laws and regulations providing for income and supplementary taxes by such means as withholding taxes applicable to dividends and other transfers, provided that they are not discriminatory.
Article 12-18. Balance of Payments and Safeguard.
1. Each Party may adopt or maintain a measure to suspend, for a reasonable period of time, all or only some of the benefits contained in this Chapter and in Article 17-07, paragraph 1, when:
a) the application of any provision of this Chapter or Chapter XVII would result in a serious economic and financial disruption in the territory of the Party, which cannot be adequately addressed by any alternative measure; or
b) the balance of payments of a Party, including the state of its monetary reserves, is seriously threatened or faces serious difficulties.
2. The Party that suspends or intends to suspend benefits under paragraph 1 shall inform the other Parties as soon as possible:
a) the serious economic and financial disruption caused by the application of this chapter or article 17-07, paragraph 1, or, as the case may be, the nature and extent of the serious threats to, or serious difficulties faced by, its balance of payments;
b) the economic and foreign trade situation of the Party;
c) the alternative measures it has available to correct the problem; and
d) the economic policies it adopts to address the problems mentioned in paragraph 1, as well as the direct relationship between such policies and the solution thereof.
3. The measure adopted or maintained by the Party, at all times:
a) avoid unnecessary damage to the economic, commercial and financial interests of the other Parties;
b) shall not impose greater burdens than are necessary to meet the difficulties which cause the measure to be adopted or maintained;
c) shall be temporary and shall be progressively released to the extent that the balance of payments, or the economic and financial situation of the Party, as the case may be, improves;
d) shall be applied in such a way as to avoid discrimination between the Parties at all times; and
e) shall strive to be consistent with internationally accepted criteria.
4. The Party that adopts a measure to suspend benefits contained in this Agreement shall inform the other Parties of the evolution of the events that gave rise to the adoption of the measure.
5. For the purposes of this article, reasonable time means the time during which the events described in paragraph 1 persist.
Article 12-19. Settlement of Disputes between the Parties.
1. As amended by this Article, Chapter XIX applies to the settlement of disputes arising between the Parties with respect to this Chapter.
2. The Financial Services Committee shall establish by consensus a list of up to fifteen individuals, including up to five individuals from each Party, who have the necessary skills and qualifications to act as arbitrators in disputes under this Chapter. The members of this roster shall, in addition to satisfying the requirements set forth in Article 19-08, paragraph 2(b), (c) and (d), have specialized knowledge in financial matters or extensive experience derived from the exercise of responsibilities in the financial sector, or in its regulation.
3. For the purposes of the constitution of the arbitral tribunal referred to in Article 19-09, the list referred to in paragraph 2 shall be used, unless the disputing Parties agree that individuals not included in that list may serve on the arbitral tribunal, provided that they meet the requirements set forth in paragraph 2.
4. In any dispute in which the arbitral tribunal has found a measure to be inconsistent with the obligations of this Agreement, where the suspension of benefits referred to in Article 19-16 applies, and the measure affects:
a) only to the financial services sector, the complaining Party may suspend benefits only in that sector;
b) to the financial services sector and any other sector, the complaining Party may suspend benefits in the financial services sector that have an effect equivalent to the effect of that measure on the financial services sector; or
c) any sector other than services, the complaining Party may not suspend benefits in the financial services sector.
Article 12-20. Disputes between an Investor and a Party.
1. Except as provided in this Article, claims brought by a disputing investor against a Party in connection with obligations under this Chapter shall be resolved in accordance with the provisions of Chapter XVII Section B and the rules of procedure contained in the Annex to Article 17-16.
2. When the Party against which the claim is made invokes any of the exceptions referred to in article 12- 09, the following procedure shall be observed:
(a) the arbitral tribunal shall refer the matter to the Financial Services Committee for decision. The tribunal may not proceed until it has received a decision of the Committee under the terms of this Article or 60 days have elapsed from the date of receipt by the Committee;
(b) upon receipt of the matter under subparagraph (a), the Committee shall decide whether and to what extent the Article 12-09 exception invoked is a valid defense to the investor's claim and shall transmit a copy of its decision to the arbitral tribunal and to the Commission. That decision shall be binding on the tribunal.
Chapter XIII. Temporary Entry of Business Persons
Article 13-01. Definitions
For the purposes of this chapter, the following definitions shall apply:
immigration authorization: the Mexican immigration document and the Colombian and Venezuelan visa.
labor certification: any procedure prior to immigration authorization that involves a government permit or authorization related to the labor market.
temporary entry: the entry of a business person of one Party into the territory of another Party, without the intention of establishing permanent residence.
national: a natural person who has the nationality of a Party in accordance with its legislation.
business person: a national of a Party who engages in trade in goods or services, or in investment activities, in accordance with the categories referred to in the Annex to Article 13-04.
Article 13-02. General Principles.
The provisions of this chapter are intended to facilitate the temporary entry of business persons based on the principle of reciprocity and considering the need to establish transparent criteria and procedures for such purpose. All this as an instrument to ensure a preferential trade relationship between the Parties. This chapter reflects the need to guarantee border security and to protect the work of their nationals and permanent employment in their respective territories.
Article 13-03. General Obligations.
1. Each Party shall apply, in accordance with Article 13-02, the measures relating to this Chapter in an expeditious manner to avoid undue delay or prejudice to trade in goods and services or investment activities covered by this Agreement.
2. The Parties shall develop and adopt common criteria, definitions and interpretations for the application of this chapter.
Article 13-04. Authorization of Temporary Entry.
1. In accordance with the provisions of this Chapter, including those contained in the Annex to Article 13- 04, each Party shall authorize the temporary entry of business persons who comply with the immigration regulations in force, with other applicable measures relating to public health and safety, as well as those relating to national security.
2. A Party may deny immigration employment authorization to a business person when his temporary entry would adversely affect his employment:
a) the settlement of any labor dispute existing at the place where she is employed or to be employed; or
b) the employment of any person involved in such conflict. 3. Where a Party denies immigration employment authorization in accordance with paragraph 2, that Party: a) communicate to the business person concerned the reasons for the refusal;
b) promptly communicate the reasons for the refusal to the Party whose national is refused entry.
4. No Party may adopt or maintain numerical restrictions on the migratory authorizations contemplated in this Chapter.
5. Within three months following the entry into force of this Agreement, the Parties shall exchange the following lists of companies, which shall be permanently updated through official communications from the competent governmental bodies:
a) trilateral list of companies that includes the companies of each of the Parties;
b) trilateral register that includes companies of one Party that have branches, subsidiaries or affiliates in the territory of another Party and transnational companies with branches, subsidiaries or affiliates in the territory of more than one Party.
6. Each Party shall limit the amount of fees for processing applications for temporary entry to the approximate cost of processing services rendered.
7. Atthe date of entry into force of the Treaty, each Party shall draw up a list of the migration measures in force in its territory.
Article 13-05. Availability of Information.
1. Each Party, in addition to the provisions of Article 21-02 of Chapter XXI:
(a) provide the other Parties with materials to enable them to become acquainted with the measures relating to this Chapter; and
(b) within six months of the entry into force of this Agreement, prepare, publish and make available, both in its territory and in the territories of the other Parties, a consolidated document containing material explaining the requirements and procedures for temporary entry.
2. Each Party shall compile, maintain and make available to the other Parties, in accordance with its domestic legislation, information relating to the granting of immigration authorizations issued in accordance with this Chapter. This compilation shall include information specific to each occupation, profession or activity.
Article 13-06. Working Group.
1. The Parties create a Temporary Entry Working Group, composed of representatives of each Party, including migration officials.
2. The Working Group shall meet at least once a year to review:
a) the application and administration of this chapter;
b) the development of measures to extend facilities for the temporary entry of business persons in accordance with the principle of reciprocity;
c) exemption from proof of labor certification or procedures having similar effect, for the spouse of a person who has been granted temporary entry under Sections B, C or D of the Annex to Article 13-04, when applying for work authorization; and
d) proposed amendments or additions to this chapter.
Article 13-07. Settlement of Disputes.
1. The Parties may not initiate the procedures provided for in Article 19-06 of Chapter XIX, with respect to a refusal of temporary entry authorization, nor with respect to any particular case covered by Article 13- 03, unless:
a) the matter relates to a recurring practice; and
b) the affected business person has exhausted the administrative remedies available to it with respect to that particular matter.
2. The appeals mentioned in paragraph 1, subparagraph b), shall be considered exhausted when the competent authority has not issued a final resolution within six months from the initiation of the administrative procedure, and the issuance of the resolution has not been delayed for causes attributable to the business person concerned.
Article 13-08. Relationship with other Chapters.
Except as provided in this Chapter and Chapters I, Il, XIX, XX! and XXIII, nothing in this Agreement shall impose any obligation on the Parties with respect to their migration measures.
Annex to Article 13-04. Business persons
Section A. Business Visitors
1. Each Party shall authorize the temporary entry of a business person who, at the prior request of an enterprise registered in the trilateral registry referred to in article 13-04, paragraph 5, subparagraph a), intends to carry out any activity mentioned in the appendix to this section, without requiring labor certification or procedures of similar effect, provided that he complies with the immigration measures in force, applicable to the temporary entry and exhibits:
a) proof of their status as a national of a Party;
b) a prior request from an enterprise established in the territory of one of the Parties; or documentation evidencing that it will undertake such activities and indicating the purpose of its entry; and
c) in the case of the provision of a service, proof of the international character of the business activity proposed to be carried out and that the business person does not intend to enter the local labor market, demonstrating that:
(i) the principal source of remuneration for that activity is outside the territory of the Party authorizing temporary entry; and
(ii) the principal place of business and where most of the profits are obtained are outside this territory.
2. The Party will normally accept a statement as to the principal place of business and the place of earning profits. Where the Party requires additional verification, it will normally consider a letter from the employer registered in the trilateral register of companies stating these circumstances to be sufficient evidence.
3. Each Party may authorize the temporary entry of a business person who intends to carry out an activity other than those listed in the Appendix to this Annex, without requiring labor certification or procedures of similar effect, on terms no less favorable than those provided for in the current provisions of the measures listed in the list referred to in Article 13-04, paragraph 7, provided that such business person also complies with the immigration measures applicable to temporary entry.
4. Notwithstanding paragraphs 1 through 3, a Party may require a business person requesting temporary entry under this section to obtain, prior to entry, immigration authorization.
Section B. Investors
1. Each Party shall authorize temporary entry and grant the corresponding documentation to a business person who intends to establish, develop, manage or provide key technical, supervisory, executive or essential skill advisory or services to carry out or manage an investment in which the business person or his enterprise has committed, or is in the process of committing, a substantial amount of capital, in accordance with the domestic legislation of each Party, provided that the business person also complies with the immigration measures applicable to temporary entry.
2. No Party may:
(a) require proof of labor certification or other procedures having similar effect, as a condition for authorizing temporary entry under paragraph 1; or
(b) impose or maintain numerical restrictions on temporary entry under paragraph 1.
3. Notwithstanding paragraph 2, a Party may examine, within a peremptory time, the investment proposal of a business person to assess whether the investment complies with the applicable legal provisions.
4. Notwithstanding paragraph 2, a Party may require a business person requesting temporary entry under this section to obtain, prior to entry, immigration authorization.
Section C. Transfer of Personnel Within a Company
1. Each Party shall authorize temporary entry and issue supporting documentation to a business person employed by a company registered in the trilateral register of companies referred to in article 13-04, paragraph 5, subparagraph b), who intends to perform managerial, executive or specialized knowledge functions in that company or in one of its subsidiaries or affiliates, provided that he/she complies with the immigration measures in force applicable to temporary entry. The Party may require that the business person has been continuously employed by the enterprise for 6 months during the year immediately preceding the date of submission of the application.
2. No Party may require proof of labor certification or other procedures of similar effect as a condition for authorizing temporary entry under paragraph 1.
3. Notwithstanding paragraph 2, a Party may require a business person requesting temporary entry under this section to obtain, prior to entry, immigration authorization.
Section D. Professionals
1. Each Party shall authorize temporary entry and issue supporting documentation to a business person who intends to carry out activities at the professional level, at the prior request of an enterprise registered in any of the trilateral lists of enterprises referred to in Article 13-04, paragraph 5, in the field of a profession indicated in the list referred to in paragraph 4 and based on the trilateral list of educational institutions referred to in paragraph 5, when the business person, in addition to complying with the immigration requirements in force, applicable to temporary entry, exhibits:
a) proof of their status as a national of a Party; and
b) documentation evidencing, based on the trilateral business registers, that the business person will undertake such activities and stating the purpose of its entry.
2. A Party may require a business person requesting temporary entry under this section to obtain, prior to entry, immigration authorization.
3. The temporary entry of a professional does not imply the recognition of titles or certificates, nor the granting of licenses for professional practice.
4. The Temporary Entry Working Group shall establish a list of professional activities to which this Annex shall apply, to be integrated in accordance with paragraph 5, within six months of the entry into force of this Agreement.
5. The Parties shall exchange within three months following the entry into force of this Agreement their respective lists of educational institutions, and shall keep them updated through communications from the competent governmental bodies.
Appendix to Section A of the Annex to Article 13-04. Categories of Business Visitors
Research and Design
- Technical, scientific and statistical researchers conducting research independently or for an enterprise located in the territory of another Party.
Cultivation, Manufacturing and Production
- Harvesting machine owners who supervise a group of operators admitted in accordance with the applicable provisions.
- Purchasing and production personnel, at management level, who carry out commercial operations for an enterprise located in the territory of another Party.
Marketing
- Market researchers and analysts who conduct research or analysis independently or for a company located in the territory of another Party.
- Trade show and promotional staff attending trade conventions. Sales
- Sales representatives and sales agents who obtain orders or negotiate contracts for goods and services for an enterprise located in the territory of another Party, but do not deliver the goods or provide the services.
Distribution
- Transport operators that carry out transport operations of goods or passengers to the territory of a Party from the territory of another Party, or carry out loading and transport operations of goods or passengers from the territory of a Party to the territory of another Party, without carrying out in the territory of the Party from which entry is requested, loading or unloading operations of goods that are in that territory or of passengers boarding therein.
- Customs brokers who provide advisory services to facilitate the importation or exportation of goods. After-sales services
- Installation, repair, maintenance, and supervisory personnel who have the technical expertise essential to fulfill the seller's contractual obligation and who provide services, or train workers to provide such services, under a warranty or other service contract related to the sale of commercial or industrial equipment or machinery, including computer software purchased from an enterprise located outside the territory of the Party from which temporary entry is sought, during the term of the warranty or service contract.