4. This Annex applies to Law 18.840, to the Decree Law 600 of 1974 (“Decreto Ley 600 de 1974”), to Law 18.657 and any other law establishing a future special voluntary investment program consistent with sub-paragraph 1(c)(iii) and to the continuation or prompt renewal of such laws, and to amendments to those laws, to the extent that any such amendment does not decrease the conformity of the amended law with Article G-09(1) as it existed immediately before the amendment.
5. For the purposes of this Annex:
Chilean juridical person means an enterprise that is constituted or organized in Chile for profit in a form which under Chilean law is recognized as being a juridical person;
date of transfer means the settlement date when the funds that constitute the investment were converted into Chilean pesos, or the date of the importation of the equipment and technology;
existing means in effect on 22 October 1996;
foreign credit means any type of debt financing originating in foreign markets whatever its nature, form or maturity period;
foreign direct investment means an investment of an investor of Canada, other than a foreign credit, made in order:
(a) to establish a Chilean juridical person or to increase the capital of an existing Chilean juridical person with the purpose of producing an additional flow of goods or services, excluding purely financial flows; or
(b) to acquire equity of an existing Chilean juridical person and to participate in its management, but excludes such an investment that is of a purely financial character and that is designed only to gain indirect access to the financial market of Chile;
Formal Exchange Market means the market constituted by the banking entities and other institutions authorized by the competent authority; and
payments for current international transactions means “payments for current international transactions” as defined under the Articles of Agreement of the International Monetary Fund, and for greater certainty, does not include payments of principal pursuant to a loan which are not made in accordance with the maturity dates originally agreed upon in the loan agreement.
Annex G-10. Expropriation
1. The concept of a “measure tantamount to nationalization or expropriation” in paragraph 1 of Article G-10 can also be termed “indirect expropriation”. Indirect expropriation results from a measure or series of measures of a Party that has an effect equivalent to direct expropriation without formal transfer of title or outright seizure.
2. The determination of whether a measure or series of measures of a Party constitutes an indirect expropriation requires a case-by-case, fact-based inquiry that considers, among other factors:
(a) the economic impact of the measure or series of measures, although the sole fact that a measure or series of measures of a Party has an adverse effect on the economic value of an investment does not establish that an indirect expropriation has occurred;
(b) the extent to which the measure or series of measures interferes with distinct, reasonable investment-backed expectations; and
(c) the character of the measure or series of measures.
3. Except in rare circumstances, such as when a measure or series of measures is so severe in the light of its purpose that it cannot be reasonably viewed as having been adopted and applied in good faith, non-discriminatory measures of a Party that are designed and applied to protect legitimate public welfare objectives, such as health, safety and the environment, do not constitute indirect expropriations.
Annex G-21.1. Submission of a claim to arbitration
Chile
1. With respect to the submission of a claim to arbitration:
(a) an investor of Canada may not allege that Chile has breached an obligation under:
(i) Section I or Article J-03(2) (State Enterprises), or
(ii) Article J-02(3)(a) (Monopolies and State Enterprises) where the monopoly has acted in a manner inconsistent with Chile’s obligations under Section I,
both in an arbitration under Section II and in proceedings before a Chilean court or administrative tribunal; and
(b) where an enterprise of Chile that is a juridical person that an investor of Canada owns or controls directly or indirectly alleges in proceedings before a Chilean court or administrative tribunal that Chile has breached an obligation under:
(i) Section I or Article J-03(2) (State Enterprises), or
(ii) Article J-02(3)(a) (Monopolies and State Enterprises) where the monopoly has acted in a manner inconsistent with Chile’s obligations under Section I,
the investor may not allege the breach in an arbitration under Section II.
2. For greater certainty, if an investor of Canada or an enterprise of Chile that is a juridical person that an investor of Canada owns or controls directly or indirectly makes an allegation referred to in paragraph 1(a) or (b) before a Chilean court or administrative tribunal, the selection of the Chilean court or administrative tribunal shall be final and such investor or enterprise may not thereafter allege the breach in an arbitration under Section II.
Annex G-38.2. Service of documents on a party under section ii
1. The place for delivery of a request for consultations and other documents under this Section is:
(a) for Canada,
Office of the Deputy Attorney General of Canada
Justice Building
284 Wellington Street
Ottawa, Ontario
K1A 0H8,
or any successor designated by Canada; and
(b) for Chile,
Departamento Jurídico de la Dirección General de Relaciones Económicas
Internacionales. Ministerio de Relaciones Exteriores
Teatinos 180
Santiago, Chile,
or any successor designated by Chile.
2. A Party shall promptly make publicly available and notify the other Party by diplomatic note of any change to the place for delivery referred to above. Investors shall ensure that service of documents to a Party is made to the appropriate place.
Annex G-38.4. Publication of an award
Canada
When Canada is the disputing Party, either Canada or a disputing investor that is a party to the arbitration may make an award public.
Chile
When Chile is the disputing Party, either Chile or a disputing investor that is a party to arbitration may make an award public.
Annex G-39.2. Exclusions from dispute settlement
Canada
A decision by Canada following a review under the Investment Canada Act (R.S.C. 1985, c.28 (1st Supp.)), with respect to whether or not to permit an investment that is subject to review, shall not be subject to the dispute settlement provisions of Section II or of Chapter N (Institutional Arrangements and Dispute Settlement Procedures).
Chapter H. Cross-border Trade In Services
Article H-01. Scope and Coverage
1. This Chapter applies to measures adopted or maintained by a Party relating to crossborder trade in services by service providers of the other Party, including measures respecting:
(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 distribution and transportation systems in connection with the provision of a service;
(d) the presence in its territory of a service provider of the other Party; and
(e) the provision of a bond or other form of financial security as a condition for the provision of a service.
2. This Chapter does not apply to:
(a) cross-border trade in financial services;
(b) air services, including domestic and international air transportation services, whether scheduled or non-scheduled, and related services in support of air services, other than
(i) aircraft repair and maintenance services during which an aircraft is withdrawn from service, and
(ii) specialty air services;
(c) procurement by a Party or a state enterprise; or
(d) subsidies or grants provided by a Party or a state enterprise, including government-supported loans, guarantees and insurance. 3. Nothing in this Chapter shall be construed to:
(a) impose any obligation on a Party with respect to a national of the other Party seeking access to its employment market, or employed on a permanent basis in its territory, or to confer any right on that national with respect to that access or employment; or
(b) prevent a Party from providing a service or performing a function such as law enforcement, correctional services, income security or insurance, social security or insurance, social welfare, public education, public training, health, and child care, in a manner that is not inconsistent with this Chapter.
Article H-02. National Treatment
1. Each Party shall accord to service providers of the other Party treatment no less favourable than that it accords, in like circumstances, to its own service providers.
2. The treatment accorded by a Party under paragraph 1 means, with respect to a province, treatment no less favourable than the most favourable treatment accorded, in like circumstances, by that province to service providers of the Party of which it forms a part.
Article H-03. Most-favoured-nation Treatment
Each Party shall accord to service providers of the other Party treatment no less favourable than that it accords, in like circumstances, to service providers of any non-Party.
Article H-04. Standard of Treatment
Each Party shall accord to service providers of the other Party the better of the treatment required by Articles H-02 and H-03.
Article H-05. Local Presence
Neither Party may require a service provider of the other Party to establish or maintain a representative office or any form of enterprise, or to be resident, in its territory as a condition for the cross-border provision of a service.
Article H-06. Reservations
1. Articles H-02, H-03 and H-05 do not apply to:
(a) any existing non-conforming measure that is maintained by
(i) a Party at the national or provincial level, as set out in its Schedule to Annex I, or
(ii) a local government;
(b) the continuation or prompt renewal of any non-conforming measure referred to in subparagraph (a); or
(c) an amendment to any non-conforming measure referred to in subparagraph (a) to the extent that the amendment does not decrease the conformity of the measure, as it existed immediately before the amendment, with Articles H-02, H-03 and H 05.
2. Articles H-02, H-03 and H-05 do not apply to any measure that a Party adopts or maintains with respect to sectors, subsectors or activities, as set out in its Schedule to Annex II.
Article H-07. Quantitative Restrictions
1. Each Party shall set out in its Schedule to Annex IV any quantitative restriction that it maintains at the national or provincial level.
2. Each Party shall notify the other Party of any quantitative restriction that it adopts, other than at the local government level, after the date of entry into force of this Agreement and shall set out the restriction in its Schedule to Annex IV.
3. The Parties shall periodically, but in any event at least every two years endeavour to negotiate the liberalization or removal of the quantitative restrictions set out in Annex IV pursuant to paragraphs 1 and 2.
Article H-08. Liberalization of Non-discriminatory Measures
Each Party shall set out in its Schedule to Annex V its commitments to liberalize quantitative restrictions, licensing requirements, performance requirements or other nondiscriminatory measures.
Article H-09. Procedures
The Commission shall establish procedures for:
(a) a Party to notify and include in its relevant Schedule (i) quantitative restrictions in accordance with Article H-07(2), (ii) commitments pursuant to Article H-08, and (iii) amendments of measures referred to in Article H-06(1)(c); and
(b) consultations on reservations, quantitative restrictions or commitments with a view to further liberalization.
Article H-10. Licensing and Certification
1. With a view to ensuring that any measure adopted or maintained by a Party relating to the licensing or certification of nationals of the other Party does not constitute an unnecessary barrier to trade, each Party shall endeavor to ensure that any such measure:
(a) is based on objective and transparent criteria, such as competence and the ability to provide a service;
(b) is not more burdensome than necessary to ensure the quality of a service; and
(c) does not constitute a disguised restriction on the cross-border provision of a service.
2. Where a Party recognizes, unilaterally or by agreement, education, experience, licences or certifications obtained in the territory of a non-Party:
(a) nothing in Article H-03 shall be construed to require the Party to accord such recognition to education, experience, licences or certifications obtained in the territory of the other Party; and
(b) the Party shall afford the other Party an adequate opportunity to demonstrate that education, experience, licences or certifications obtained in the other Party's territory should also be recognized or to conclude an agreement or arrangement of comparable effect.
3. Each Party shall, within two years of the date of entry into force of this Agreement, eliminate any citizenship or permanent residency requirement set out in its Schedule to Annex I that it maintains for the licensing or certification of professional service providers of the other Party. Where a Party does not comply with this obligation with respect to a particular sector, the other Party may, in the same sector and for such period as the non-complying Party maintains its requirement, solely have recourse to maintaining an equivalent requirement set out in its Schedule to Annex I or reinstating:
(a) any such requirement at the national level that it eliminated pursuant to this Article; or
(b) on notification to the non-complying Party, any such requirement at the provincial level existing on the date of entry into force of this Agreement.
4. The Parties shall consult periodically with a view to determining the feasibility of removing any remaining citizenship or permanent residency requirement for the licensing or certification of each other's service providers.
5. Annex H-10.5 applies to measures adopted or maintained by a Party relating to the licensing or certification of professional service providers.
Article H-11. Denial of Benefits
1. A Party may deny the benefits of this Chapter to a service provider of the other Party where the Party establishes that:
(a) the service is being provided by an enterprise owned or controlled by nationals of a non- Party, and the denying Party adopts or maintains measures with respect to the non-Party that prohibit transactions with the enterprise or that would be violated or circumvented if the benefits of this Chapter were accorded to the enterprise; or
(b) the cross-border provision of a transportation service covered by this Chapter is provided using equipment not registered by a Party.
2. Subject to prior notification and consultation in accordance with Articles L-03 (Notification and Provision of Information) and N-06 (Consultations), a Party may deny the benefits of this Chapter to a service provider of the other Party where the Party establishes that the service is being provided by an enterprise that is owned or controlled by persons of a non-Party and that has no substantial business activities in the territory of the other Party.
Article H-12. Definitions
1. For purposes of this Chapter, a reference to a national or provincial government includes any non-governmental body in the exercise of any regulatory, administrative or other governmental authority delegated to it by that government.
2. For purposes of this Chapter:
cross-border provision of a service or cross-border trade in services means the provision of a service:
(a) from the territory of a Party into the territory of the other Party;
(b) in the territory of a Party by a person of that Party to a person of the other Party; or
(c) by a national of a Party in the territory of the other Party, but does not include the provision of a service in the territory of a Party by an investment, as defined in Article G-40 (Investment - Definitions), in that territory;
enterprise means an "enterprise" as defined in Article B-01 (Definitions of General Application), and a branch of an enterprise;
enterprise of a Party means an enterprise constituted or organized under the law of a Party, and a branch located in the territory of a Party and carrying out business activities there;
existing means in effect on January 1, 1994 for Canada and December 29, 1995 for Chile;
financial service means a service of a financial nature, including insurance, and services incidental or auxiliary to a service of a financial nature;
professional services means services, the provision of which requires specialized postsecondary education, or equivalent training or experience, and for which the right to practice is granted or restricted by a Party, but does not include services provided by trades-persons or vessel and aircraft crew members;
quantitative restriction means a non-discriminatory measure that imposes limitations on:
(a) the number of service providers, whether in the form of a quota, a monopoly or an economic needs test, or by any other quantitative means; or
(b) the operations of any service provider, whether in the form of a quota or an economic needs test, or by any other quantitative means; service provider of a Party means a person of a Party that seeks to provide or provides a service; and
specialty air services means aerial mapping, aerial surveying, aerial photography, forest fire management, fire fighting, aerial advertising, glider towing, parachute jumping, aerial construction, heli-logging, aerial sightseeing, flight training, aerial inspection and surveillance, and aerial spraying services.
Annex H-10.5. Professional services
Section I. General Provisions
Processing of applications for licences and certifications
1. Each Party shall ensure that its competent authorities, within a reasonable time after the submission by a national of the other Party of an application for a licence or certification:
(a) where the application is complete, make a determination on the application and inform the applicant of that determination; or
(b) where the application is not complete, inform the applicant without undue delay of the status of the application and the additional information that is required under the Party's law.
Development of Professional Standards
- The Parties shall encourage the relevant bodies in their respective territories to develop mutually acceptable standards and criteria for licensing and certification of professional service providers and to provide recommendations on mutual recognition to the Commission.
- The standards and criteria referred to in paragraph 2 may be developed with regard to the following matters:(a) education - accreditation of schools or academic programs;(b) examinations - qualifying examinations for licensing, including alternative methods of assessment such as oral examinations and interviews;(c) experience - length and nature of experience required for licensing;(d) conduct and ethics - standards of professional conduct and the nature of disciplinary action for non-conformity with those standards;(e) professional development and re-certification - continuing education and ongoing requirements to maintain professional certification;(f) scope of practice - extent of, or limitations on, permissible activities;(g) local knowledge - requirements for knowledge of such matters as local laws, regulations, language, geography or climate; and(h) consumer protection - alternatives to residency requirements, including bonding, professional liability insurance and client restitution funds, to provide for the protection of consumers.
- On receipt of a recommendation referred to in paragraph 2, the Commission shall review the recommendation within a reasonable time to determine whether it is consistent with this Agreement. Based on the Commission's review, each Party shall encourage its respective competent authorities, where appropriate, to implement the recommendation within a mutually agreed time.
Temporary Licensing
- Where the Parties agree, each Party shall encourage the relevant bodies in its territory to develop procedures for the temporary licensing of professional service providers of the other Party.
Review
- The Commission shall periodically, and at least once every three years, review the implementation of this Section.
Section II. Foreign Legal Consultants
- Each Party shall, in implementing its obligations and commitments regarding foreign legal consultants as set out in its relevant Schedules and subject to any reservations therein, ensure that a national of the other Party is permitted to practice or advise on the law of any country in which that national is authorized to practice as a lawyer.
Consultations With Professional Bodies
- Each Party shall consult with its relevant professional bodies to obtain their recommendations on:(a) the form of association or partnership between lawyers authorized to practice in its territory and foreign legal consultants;(b) the development of standards and criteria for the authorization of foreign legal consultants in conformity with Article H-10; and(c) other matters relating to the provision of foreign legal consultancy services.
- Prior to initiation of consultations under paragraph 7, each Party shall encourage its relevant professional bodies to consult with the relevant professional bodies designated by the other Party regarding the development of joint recommendations on the matters referred to in paragraph 2.
Future Liberalization