a. money market instruments (including checks, bills, certificates of deposits),
b. foreign exchange,
c. derivative products including, futures and options,
d. exchange rate and interest rate instruments, including products such as swaps, forward rate agreements,
e. transferable securities, or
f. other negotiable instruments and financial assets, including bullion;
11. Participation in issues of all kinds of securities, including underwriting and placement as agent (whether publicly or privately) and provision of services related to such issues;
12. Money broking;
13. Asset management, such as cash or portfolio management, all forms of collective investment management, pension fund management, custodial, depository, and trust services;
14. Settlement and clearing services for financial assets, including securities, derivative products, and other negotiable instruments;
15. Provision and transfer of financial information, and financial data processing and related software by suppliers of other financial services;
16. Advisory, intermediation, and other auxiliary financial services on all the activities listed in subparagraphs (e) through (o), including credit reference and analysis, investment and portfolio research and advice, advice on acquisitions and on corporate restructuring and strategy;
financial service supplier of a Party means a person of a Party that is engaged in the business of supplying a financial service within the territory of that Party;
investment means “investment” as defined in Article G-40 (Investment – Definitions), except that, with respect to “loans” and “debt securities” referred to in that Article:
- a loan to or debt security issued by a financial institution is an investment only where it is treated as regulatory capital by the Party in whose territory the financial institution is located; and
- a loan granted by or debt security owned by a financial institution, other than a loan to or debt security of a financial institution referred to in subparagraph (a), is not an investment;
for greater certainty a loan to, or debt security issued by, a Party or a state enterprise thereof is not an investment; and a loan granted by or debt security owned by a cross border financial service supplier, other than a loan to or debt security issued by a financial institution, is an investment if such loan or debt security meets the criteria for investments set out in Article G-40 (Investment – Definitions);
investor of a Party means a Party or state enterprise thereof, or a person of that Party, that seeks to make, is making, or has made an investment;
new financial service means a financial service not supplied in the Party’s territory that is supplied within the territory of the other Party, and includes any new form of delivery of a financial service or the sale of a financial product that is not sold in the Party’s territory;
person of a Party means “person of a Party” as defined in Article B-01 (Definitions of General Application) and, for greater certainty, does not include a branch of an enterprise of a non-Party;
public entity means a central bank or monetary authority of a Party, or any financial institution owned or controlled by a Party; and
self-regulatory organization means any non-governmental body, including any securities or futures exchange or market, clearing agency, other organization or association, that exercises its own or delegated regulatory or supervisory authority over financial service suppliers or financial institutions.
Annex H-bis 05. Cross-border trade
Canada
Insurance and Insurance-Related Services
1. Article H bis-05(1) applies to cross-border trade in financial services with respect to:
a. insurance of risks relating to:
i. maritime transport, commercial aviation and space launching and freight (including satellites), with such insurance to cover any or all of the following: the goods being transported, the vehicle transporting the goods, and any liability deriving therefrom, and
ii. goods in international transit; and
iii. reinsurance and retrocession, services auxiliary to insurance as described in subparagraph (d) of the definition of financial service, and insurance intermediation such as brokerage and agency as described in subparagraph (c) of the definition of financial service.
2. Paragraph 1 applies only where a Chilean entity is not in itself or through an agent insuring in Canada a risk.
Banking and Other Financial Services (excluding insurance)
3. Article H bis-05(1) applies to cross-border trade in financial services with respect to:
a. the provision and transfer of financial information and financial data processing as described in subparagraph (o) of the definition of financial service; (3) and
b. advisory and other auxiliary financial services, and credit reference and analysis, excluding intermediation, relating to banking and other financial services as described in subparagraph (p) of the definition of financial service.
4. Paragraph 3 applies only if neither the foreign bank nor one of its affiliates, if subject to the Bank Act, S.C. 1991, c. 46, maintains a financial establishment in Canada.
Chile
Insurance and insurance-related services
1. Article H bis-05 applies to cross-border trade in financial services with respect to:
a. insurance of risk relating to:
i. international maritime transport and international commercial aviation, with such insurance to cover any or all of the following: the goods being transported, the vehicle transporting the goods, and any liability deriving therefrom, and
ii. goods in international transit;
b. brokerage of insurance of risks relating to subparagraphs (a)(i) and (a)(ii); and
c. reinsurance and retrocession; reinsurance brokerage; and consultancy, actuarial, and risk assessment.
Banking and other financial services (excluding insurance)
2. Article H bis-05 applies to cross-border trade in financial services with respect to:
a. provision and transfer of financial information as described in subparagraph (o) of the definition of financial service;
b. financial data processing as described in subparagraph (o) of the definition of financial service, subject to prior authorization from the relevant regulator, as required; (4) and
c. advisory and other auxiliary financial services, excluding intermediation and credit reference and analysis, relating to banking and other financial services as described in subparagraph (p) of the definition of financial service.
3. It is understood that Chile’s commitments on cross-border advisory services shall not, in and of themselves, be construed to require Chile to permit the public offering of securities (as defined under its relevant law) in the territory of Chile by cross-border suppliers of Canada who supply or seek to supply such advisory services. Chile may subject the cross-border suppliers of advisory services to regulatory and registration requirements.
Annex H-bis 09. Certain specific commitments
Canada
A. Portfolio Management
1. Subject to paragraph 2, Canada shall allow a financial institution organized outside its territory to provide the following services to a collective investment scheme located in its territory:
a. investment advice, and
b. portfolio management services, excluding:
i. custodial services, unless they are related to managing a collective investment scheme,
ii. trustee services, but not excluding the holding in trust of investments by a collective investment scheme established as a trust, and
iii. execution services, unless they are related to managing a collective investment scheme.
2. This commitment is subject to Article H bis-01, Article H bis-05(3) and the Appendix to this Section.
3. Notwithstanding paragraph 1, Canada may require a collective investment scheme located in Canada to retain ultimate responsibility for the management of the collective investment scheme or the funds that it manages.
4. For purposes of this commitment, in Canada collective investment scheme means investment funds or fund management companies regulated or registered under provincial securities laws and regulations.
Appendix Hbis-09.
1. Canada’s commitment in Annex H bis-09, section (A) (Portfolio Management) applies at the sub-national level only to the following provinces or territories and subject to paragraph 2:
Ontario; and
Manitoba.
2. The commitment in respect of any of the provinces or territories listed in paragraph 1 does not apply to any existing non-conforming measure of any of those provinces or territories, the continuation or prompt renewal of any such measure or any amendment to any such measure to the extent that the amendment does not decrease the conformity of the measure, as it existed upon the entry into force of this Amending Agreement, with the commitment.
3. Not later than four (4) years after the entry into force of the Amending Agreement, the Parties shall consult on the liberalization of cross-border trade in portfolio management services, further to that set out in this specific commitment. In such consultations, the Parties shall determine whether Canada’s specific commitment shall be maintained or further liberalized.
Chile
Section A: Voluntary Savings Plans; Non-Discriminatory Treatment of Canadian Investors
1. Notwithstanding the inclusion of the non-conforming measures of Chile in Annex VI, Section II, referring to social services, with respect to voluntary savings pension plans established under Ley 19.768, Chile shall extend the obligations of Article H bis-03 and of paragraphs 1 and 2 of Article H bis-02 to financial institutions of Canada, investors of Canada, and investments of such investors in financial institutions established in Chile.
2. Notwithstanding the inclusion of the nonconforming measures of Chile in Annex VI, Section II, referring to social services, Chile, as required by its domestic law, shall not establish arbitrary differences with respect to Canadian investors in Administradoras de Fondos de Pensiones under Decreto Ley 3.500.
Section B: Portfolio Management
1. Chile shall allow a financial institution (other than a trust company or insurance company), organized outside its territory, to provide investment advice and portfolio management services, excluding (1) custodial services, (2) trustee services, and (3) execution services that are not related to managing a collective investment scheme, to a collective investment scheme located in Chile’s territory. This commitment is subject to Article H bis-01 and to the provisions of Article H bis-05(3) regarding the right to require registration, without prejudice to other means of prudential regulation.
2. Notwithstanding paragraph 1, Chile may require the collective investment scheme located in Chile’s territory to retain ultimate responsibility for the management of the collective investment scheme or the funds that it manages.
3. For purposes of paragraphs 1 and 2, collective investment scheme means in Chile, the following fund management companies subject to supervision by the Superintendencia de Valores y Seguros:
a. Compañías Administradoras de Fondos Mutuos (Decreto Ley 1.328 de 1976);
b. Compañías Administradoras de Fondos de Inversión (Ley 18.815 de 1989);
c. Compañías Administradoras de Fondos de Inversión de Capital Extranjero (Ley 18.657 de 1987);
d. Compañías Administradoras de Fondos para la Vivienda (Ley 18.281 de 1993); and
e. Compañías Administradoras Generales de Fondos (Ley 18.045 de 1981).
Annex Hbis-15. Authorities responsible for financial services
The authority of each Party responsible for financial services shall be:
a. for Canada, the Department of Finance of Canada; and
b. for Chile, the Ministerio de Hacienda,
or a successor that is notified to the other Party in writing.
Chapter I. Telecommunications
Article I-01. Scope and Coverage
1. This Chapter applies to:
(a) measures adopted or maintained by a Party relating to access to and use of public telecommunications transport networks or services by persons of the other Party, including access and use by such persons operating private networks;
(b) measures adopted or maintained by a Party relating to the provision of enhanced or value-added services by persons of the other Party in the territory, or across the borders, of a Party; and
(c) standards-related measures relating to attachment of terminal or other equipment to public telecommunications transport networks.
2. Except to ensure that persons operating broadcast stations and cable systems have continued access to and use of public telecommunications transport networks and services, this Chapter does not apply to any measure adopted or maintained by a Party relating to broadcast or cable distribution of radio or television programming.
3. Nothing in this Chapter shall be construed to:
(a) require a Party to authorize a person of the other Party to establish, construct, acquire, lease, operate or provide telecommunications transport networks or telecommunications transport services;
(b) require a Party, or require a Party to compel any person, to establish, construct, acquire, lease, operate or provide telecommunications transport networks or telecommunications transport services not offered to the public generally;
(c) prevent a Party from prohibiting persons operating private networks from using their networks to provide public telecommunications transport networks or services to third persons; or
(d) require a Party to compel any person engaged in the broadcast or cable distribution of radio or television programming to make available its cable or broadcast facilities as a public telecommunications transport network.
Article I-02. Access to and Use of Public Telecommunications Transport Networks and Services
1. Each Party shall ensure that persons of the other Party have access to and use of any public telecommunications transport network or service, including private leased circuits, offered in its territory or across its borders for the conduct of their business, on reasonable and nondiscriminatory terms and conditions, including as set out in paragraphs 2 through 8.
2. Subject to paragraphs 6 and 7, each Party shall ensure that such persons are permitted to:
(a) purchase or lease, and attach terminal or other equipment that interfaces with the public telecommunications transport network;
(b) interconnect private leased or owned circuits with public telecommunications transport networks in the territory, or across the borders, of that Party, including for use in providing dialup access to and from their customers or users, or with circuits leased or owned by another person on terms and conditions mutually agreed by those persons;
(c) perform switching, signalling and processing functions; and
(d) use operating protocols of their choice.
3. Each Party shall ensure that:
(a) the pricing of public telecommunications transport services reflects economic costs directly related to providing the services; and
(b) private leased circuits are available on a flat-rate pricing basis. Nothing in this paragraph shall be construed to prevent crosssubsidization between public telecommunications transport services.
4. Each Party shall ensure that persons of the other Party may use public telecommunications transport networks or services for the movement of information in its territory or across its borders, including for intracorporate communications, and for access to information contained in data bases or otherwise stored in machine-readable form in the territory of the other Party.
5. Further to Article O-01 (General Exceptions), nothing in this Chapter shall be construed to prevent a Party from adopting or enforcing any measure necessary to:
(a) ensure the security and confidentiality of messages; or
(b) protect the privacy of subscribers to public telecommunications transport networks or services.
6. Each Party shall ensure that no condition is imposed on access to and use of public telecommunications transport networks or services, other than that necessary to:
(a) safeguard the public service responsibilities of providers of public telecommunications transport networks or services, in particular their ability to make their networks or services available to the public generally; or
(b) protect the technical integrity of public telecommunications transport networks or services.
7. Provided that conditions for access to and use of public telecommunications transport networks or services satisfy the criteria set out in paragraph 6, such conditions may include:
(a) a restriction on resale or shared use of such services;
(b) a requirement to use specified technical interfaces, including interface protocols, for interconnection with such networks or services;
(c) a restriction on interconnection of private leased or owned circuits with such networks or services or with circuits leased or owned by another person, where the circuits are used in the provision of public telecommunications transport networks or services; and
(d) a licensing, permit, registration or notification procedure which, if adopted or maintained, is transparent and applications filed thereunder are processed expeditiously.
8. For purposes of this Article, "non-discriminatory" means on terms and conditions no less favorable than those accorded to any other customer or user of like public telecommunications transport networks or services in like circumstances.
Article I-03. Conditions for the Provision of Enhanced or Value-added Services
1. Each Party shall ensure that:
(a) any licensing, permit, registration or notification procedure that it adopts or maintains relating to the provision of enhanced or value-added services is transparent and nondiscriminatory, and that applications filed thereunder are processed expeditiously; and
(b) information required under such procedures is limited to that necessary to demonstrate that the applicant has the financial solvency to begin providing services or to assess conformity of the applicant's terminal or other equipment with the Party's applicable standards or technical regulations. 2. Neither Party may require a person providing enhanced or value-added services to:
(a) provide those services to the public generally;
(b) cost justify its rates;
(c) file a tariff;
(d) interconnect its networks with any particular customer or network; or
(e) conform with any particular standard or technical regulation for interconnection other than for interconnection to a public telecommunications transport network.
3. Notwithstanding paragraph 2(c), a Party may require the filing of a tariff by:
(a) such provider to remedy a practice of that provider that the Party has found in a particular case to be anticompetitive under its law; or
(b) a monopoly to which Article I-05 applies.
Article I-04. Standards-related Measures
1. Further to the WTO Agreement on Technical Barriers to Trade each Party shall ensure that its standards-related measures relating to the attachment of terminal or other equipment to the public telecommunications transport networks, including those measures relating to the use of testing and measuring equipment for conformity assessment procedures, are adopted or maintained only to the extent necessary to:
(a) prevent technical damage to public telecommunications transport networks;
(b) prevent technical interference with, or degradation of, public telecommunications transport services; (c) prevent electromagnetic interference, and ensure compatibility, with other uses of the electromagnetic spectrum; (d) prevent billing equipment malfunction; or (e) ensure users' safety and access to public telecommunications transport networks or services.
2. A Party may require approval for the attachment to the public telecommunications transport network of terminal or other equipment that is not authorized, provided that the criteria for that approval are consistent with paragraph 1.
3. Each Party shall ensure that the network termination points for its public telecommunications transport networks are defined on a reasonable and transparent basis.
4. Neither Party may require separate authorization for equipment that is connected on the customer's side of authorized equipment that serves as a protective device fulfilling the criteria of paragraph 1.
5. Further to the WTO Agreement on Technical Barriers to Trade each Party shall:
(a) ensure that its conformity assessment procedures are transparent and nondiscriminatory and that applications filed thereunder are processed expeditiously;
(b) permit any technically qualified entity to perform the testing required under the Party's conformity assessment procedures for terminal or other equipment to be attached to the public telecommunications transport network, subject to the Party's right to review the accuracy and completeness of the test results; and
(c) ensure that any measure that it adopts or maintains requiring persons to be authorized to act as agents for suppliers of telecommunications equipment before the Party's relevant conformity assessment bodies is non-discriminatory.
6. No later than one year after the date of entry into force of this Agreement, each Party shall adopt, as part of its conformity assessment procedures, provisions necessary to accept the test results from laboratories or testing facilities in the territory of the other Party for tests performed in accordance with the accepting Party's standards-related measures and procedures.
7. The Parties hereby establish a Committee on Telecommunications Standards, comprising representatives of each Party.
8. The Committee on Telecommunications Standards shall perform the functions set out in Annex I-04.
Article I-05. Monopolies (1)
1. Where a Party maintains or designates a monopoly to provide public telecommunications transport networks or services, and the monopoly, directly or through an affiliate, competes in the provision of enhanced or value-added services or other telecommunications-related services or telecommunications-related goods, the Party shall ensure that the monopoly does not use its monopoly position to engage in anticompetitive conduct in those markets, either directly or through its dealings with its affiliates, in such a manner as to affect adversely a person of the other Party. Such conduct may include cross-subsidization, predatory conduct and the discriminatory provision of access to public telecommunications transport networks or services.