3. For greater certainty, the Tribunal may not award other remedies than those referred to in paragraph 1, nor may it order the repeal, cessation or modification of the measure or measures concerned.
4. Monetary damages shall not be greater than the loss suffered by the claimant or, as applicable, the locally established enterprise, as a result of the breach of the provisions referred to in Article 10.21.1, reduced by any prior damages or compensation already provided by the Party concerned. The Tribunal shall not award punitive damages. For greater certainty, if an investor submits a claim pursuant to Article 10.26.1(a), it may recover only loss or damage that it has incurred in its capacity as an investor of a Party.
5. The Tribunal shall order that the costs of the proceedings be borne by the unsuccessful disputing party. In exceptional circumstances, the Tribunal may apportion such costs between the disputing parties if it determines that apportionment is appropriate in the circumstances of the case. Other reasonable costs, including the reasonable costs of legal representation and assistance, shall be borne by the unsuccessful disputing party, unless the Tribunal determines that such apportionment is unreasonable in the circumstances of the case. When considering the reasonableness of the costs or of their apportionment, the Tribunal may also take into account whether the costs to be reimbursed to the prevailing disputing party would excessively exceed the costs incurred by the unsuccessful disputing party. If only some parts of the claims have been successful, the costs of the proceedings and other reasonable costs shall be adjusted, proportionately, to the number or extent of the successful parts of the claims. The Appeal Tribunal shall deal with costs in accordance with this Article.
6. No later than one year after the entry into force of this Agreement, the Joint Council shall adopt supplemental 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.
7. The Tribunal and the disputing parties shall make every effort to ensure that the dispute settlement process is carried out in a timely manner. The Tribunal should issue its award within 30 months after the date the claim is submitted pursuant to Article 10.26. If the Tribunal requires additional time to issue its award, it shall provide the disputing parties the reasons for the delay.
8. An award shall become final if 90 days have elapsed after it has been issued and neither disputing party has appealed the award to the Appeal Tribunal.
9. Either disputing party may appeal the award pursuant to Article 10.49. In that case, if the Appeal Tribunal modifies or reverses the award of the Tribunal and refers the matter back to the Tribunal, the Tribunal shall be bound by the findings of the Appeal Tribunal and shall, after hearing the disputing parties if appropriate, revise its award to reflect the findings and conclusions of the Appeal Tribunal. The Tribunal shall seek to issue its revised award within 90 days after receiving the referral by the Appeal Tribunal. The revised award shall become final 90 days after its issuance.
Article 10.49. Appeal Procedure
1. A disputing party may appeal before the Appeal Tribunal an award within 90 days after 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 the appreciation of relevant domestic law; or
(c) the grounds provided for in Article 52 of the ICSID Convention, in so far as they are not covered by subparagraphs (a) and (b) of this paragraph.
2. If the Appeal Tribunal dismisses the appeal, the award shall become final. The Appeal Tribunal may also dismiss the appeal on an expedited basis where it is clear that the appeal is manifestly unfounded, in which case the award shall become final. If the appeal is well founded, the Appeal Tribunal shall modify or reverse the legal findings and conclusions in the award in whole or part. Its decision shall specify precisely how it has modified or reversed the relevant findings and conclusions of the Tribunal.
3. As a general rule, the appeal proceedings shall not exceed 180 days from the date a disputing party submits its appeal to the date the Appeal Tribunal issues its decision. If the Appeal Tribunal considers that it cannot issue its decision within 180 days, it shall inform the disputing parties in writing of the reasons for the delay together with an estimate of the period within which it will issue its decision. In no case should the proceedings exceed 270 days.
4. The Appeal Tribunal may order the disputing party lodging an appeal to post security for all or a part of the costs of the appeal proceedings.
5. The provisions of Articles 10.23, 10.27, 10.29, 10.34, 10.38, 10.39, 10.40, 10.42 and 10.43 shall apply mutatis mutandis in respect of the appeal procedure.
6. The Joint Council may adopt rules providing guidance to the Appeal Tribunal on how to conduct the appeal proceedings in case of bifurcation of the proceedings before the Tribunal.
Article 10.50. Enforcement of Awards
1. An award issued pursuant to this Section shall not be enforceable until it has become final pursuant to Articles 10.48.8, 10.48.9 or 10.49. A final award issued pursuant to this Section by the Tribunal or the Appeal Tribunal shall be binding on the disputing parties and shall not be subject to appeal, review, set aside, annulment or any other remedy. 51
2. A Party shall recognise an award issued pursuant to this Section as binding and enforce the pecuniary obligation within its territory as if it were a final judgement of a court in that Party.
3. Execution of the award shall be governed by the laws and international commitments concerning the execution of judgments or awards in force where such execution is sought.
4. For greater certainty, Article 2.11 of Part IV of this Agreement shall not prevent the recognition, execution and enforcement of awards issued 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 out of a commercial relationship or transaction.
6. For greater certainty and subject to paragraph 1, if a claim has been submitted to dispute settlement pursuant to Article 10.26.2(a), a final award issued pursuant to this Section shall qualify as an award under Section 6 of Chapter IV of the ICSID Convention.
Article 10.51. Service of Documents
Requests for consultations, notices and other documents to a Party shall be delivered to the places named for that Party in Annex 10-E or its respective successors. A Party shall promptly make publicly available and notify the other Party of any change to the place referred in that Annex.
Section E. FINAL PROVISIONS
Article 10.52. Denial of Benefits
A Party may deny the benefits of this Chapter to an investor of the other Party that is an enterprise of that Party and to investments of that investor if:
(a) an investor of a third country owns or controls the enterprise; and
(b) the denying Party adopts or maintains a measure with respect to that third country, or with respect to natural persons or enterprises of that third country, that prohibits transactions with the enterprise or that would be violated or circumvented if the benefits of this Chapter were accorded to that investor or to its investments.
Article 10.53. Termination
1. If this Agreement is terminated pursuant to Article 2.13 of Part IV of this Agreement, Articles 10.7.2, 10.8.2 and 10.12 and Sections C, D and E of this Chapter, as well as any other relevant provisions of this Agreement, shall continue to apply for a further period of five years from the date of termination, with respect to covered investments made before the date of termination of this Agreement.
2. The period referred to in paragraph 1 shall be extended for a single additional period of five years, provided that no other investment protection agreement between the Parties is in force.
3. This Article does not apply if the provisional application of this Agreement is terminated and this Agreement does not enter into force.
Article 10.54. Relation to other Agreements
1. On the date of entry into force of this Agreement, the agreements between Member States of the European Union and Mexico listed in Annex 10-C, including the rights and obligations derived therefrom, 52 shall cease to have effect and shall be replaced and superseded by this Agreement.
2. In case the provisional application of this Agreement in accordance with paragraph 4 of Article 2.5 of Part IV of this Agreement covers this Section and Sections C and D of this Chapter, the application of the agreements listed in Annex 10‑C, as well as the rights and obligations derived therefrom, shall be suspended as of the date of provisional application. If the provisional application of this Agreement is terminated and this Agreement does not enter into force, the suspension shall cease and the agreements listed in Annex 10-C shall have effect as of the date the provisional application is terminated.
3. Notwithstanding paragraphs 1 and 2, a claim may be submitted pursuant to an agreement listed in Annex 10-C in accordance with the rules and procedures established in that agreement, provided that:
(a) the claim arises from an alleged breach of that agreement that took place prior to the date of suspension of that agreement pursuant to paragraph 2 or, if that agreement ceases to have effect pursuant to paragraph 1, prior to the date of entry into force of this Agreement; and
(b) no more than three years have elapsed from the date of suspension of that agreement pursuant to paragraph 2 or, if that agreement ceases to have effect pursuant to paragraph 1, from the date of entry into force of this Agreement until the date of submission of the claim.
4. Notwithstanding paragraph 2, if the provisional application of this Agreement, including the provisions of this Chapter as specified in paragraph 2, is terminated and this Agreement does not enter into force, a claim may be submitted pursuant to this Chapter, in accordance with the rules and procedures established in this Chapter, provided that:
(a) the claim arises from an alleged breach of this Chapter that took place during the period of provisional application of this Agreement; and
(b) no more than three years have elapsed from the date of termination of the provisional application of this Agreement until the date of submission of the claim.
5. For the purposes of this Article, the definition of "entry into force of this Agreement" provided for in paragraph 7 of Article 2.5 of Part IV does not apply.
Article 10.55. Sub-Committee on Services and Investment
The Sub-Committee on Services and Investment established pursuant to Article 1.10 shall:
(a) provide a forum for the Parties to consult on issues related to this Chapter, including:
(i) difficulties which may arise in the implementation of this Chapter;
(ii) possible improvements of this Chapter, in particular in light of experience and developments in other international fora and under other agreements of the Parties; and
(iii) on request of a Party, the implementation of any mutually agreed solution as regards a dispute under Section D; and
(b) prepare decisions to be adopted or actions to be taken by the Joint Council pursuant to this Chapter.
Chapter 11. CROSS-BORDER TRADE IN SERVICES
ARTICLE 11.1
Definitions
1. For the purposes of this Chapter:
(a) "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;
(b) "enterprise" means an enterprise as defined in Article 1.3, or a branch or a representative office thereof;
(c) "enterprise of the European Union" or "enterprise of Mexico" means an enterprise set up in accordance with the law of the European Union or its Member States, or of Mexico and engaged in substantive business operations 53 in the territory of the European Union or of Mexico, respectively; 54
shipping companies established outside the European Union or Mexico and controlled by nationals of a Member State of the European Union or of Mexico, respectively, shall also be beneficiaries of the provisions of this Chapter if their vessels are registered in accordance with the law of a Member State of the European Union or of Mexico, as appropriate, and fly the flag of that Member State of the European Union or of Mexico;
(d) "service supplied in the exercise of governmental authority" means, for each Party, any service that is supplied neither on a commercial basis nor in competition with one or more service suppliers; and
(e) "service supplier of a Party" means a natural person or an enterprise of a Party other than a branch or a representative office that seeks to supply or supplies a service.
ARTICLE 11.2
Scope
1. This Chapter applies to measures of a Party affecting cross-border trade in services by service suppliers of the other Party. Those measures include measures affecting:
(a) the production, distribution, marketing, sale or 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 or telecommunications networks; and
(d) the provision of any form of financial security, including a bond, as a condition for the supply of a service.
2. This Chapter does not apply to:
(a) audio-visual services;
(b) national maritime cabotage; 55
(c) measures of a Party insofar as they are covered by Chapter 18;
(d) services supplied in the exercise of governmental authority;
(e) government procurement of a good or service purchased for governmental purposes, and not with a view to commercial resale, or use in the production of a good or supply service for commercial sale, irrespective of whether that procurement constitutes a covered procurement within the meaning of Article 21.1;
(f) subsidies 56 or grants provided by a Party, including government-supported loans, guarantees and insurance; and
(g) air services or related services in support of air services 57 , 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 services; and
(iv) ground handling services.
3. Articles 11.4 to 11.7 do not apply to new services as set out in Annex VII.
ARTICLE 11.3
Right to Regulate
The Parties affirm the right to regulate within their territories to achieve legitimate policy objectives, such as public health, social services, public education, safety, environment, public morals, social or consumer protection, privacy and data protection, the promotion and protection of cultural diversity, or competition.
ARTICLE 11.4
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 imposing limitations on:
(a) the number of service suppliers, whether in the form of numerical quotas, monopolies, exclusive service suppliers or the requirement of an economic needs test;
(b) the total value of service transactions or assets in the form of numerical quotas or the requirement of an economic needs test; or
(c) the total number of service operations or the total quantity of service output expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test.
ARTICLE 11.5
Local Presence
A Party shall not require a service supplier 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 supply of a service.
ARTICLE 11.6
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 to be accorded by Mexico pursuant to paragraph 1 is, with respect to a regional level of government of Mexico, treatment no less favourable than the most favourable treatment accorded, in like situations, by that regional level of government to its own services and service suppliers.
3. The treatment to be accorded by the European Union pursuant to paragraph 1 is, with respect to a government of or in a Member State of the European Union, treatment no less favourable than the most favourable treatment accorded, in like situations, by that government to its services and service suppliers.
ARTICLE 11.7
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 recognition, including of the standards or criteria for the authorisation, licencing or certification of a natural person or enterprise to carry out an economic activity, or of prudential measures.
ARTICLE 11.8
Non-Conforming Measures and Exceptions
1. Articles 11.5 to 11.7 do not apply to:
(a) any existing non-conforming measure of a Party that is maintained by:
(i) the European Union, as set out in its List to Annex I;
(ii) a national government, as set out by that Party in its List to Annex I;
(iii) a regional government, as set out by that Party in its List to Annex I; or
(iv) a local government;
(b) the continuation or prompt renewal of a non-conforming measure referred to in subparagraph (a); or
(c) any amendment to a 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 11.5 to 11.7.
2. Articles 11.5 to 11.7 do not apply to a measure that a Party adopts or maintains with respect to sectors, subsectors or activities, as set out in its List to Annex II.
3. Article 11.4 does not apply to any measure of a Party with respect to committed sectors or subsectors as set out in its Annex III.
4. Within five years after the date of entry into force of this Agreement, Mexico may notify to the European Union a draft Joint Council decision to modify Appendix I-B-2 to Annex I and Appendix III-B-2 to Annex III with any existing non-conforming measures maintained at the sub‑federal level of government.
The European Union shall review that draft within a period of three months and consult with Mexico any related issues. After consultation, the Joint Council shall adopt the modifications to the annexes referred to in this paragraph. The modified annexes shall apply as of the date of adoption of the modifications.
ARTICLE 11.9
Denial of Benefits
A Party may deny the benefits of this Chapter to a service supplier of the other Party that is an enterprise of that Party and to services of that service supplier if:
(a) a person of a third country owns or controls the enterprise; and
(b) the denying Party adopts or maintains a measure with respect to that third country or to enterprises or natural persons of that third country, that prohibits transactions with the enterprise or that would be violated or circumvented if the benefits of this Chapter were accorded to the enterprise.
CHAPTER 12
TEMPORARY PRESENCE OF NATURAL PERSONS FOR BUSINESS PURPOSES
ARTICLE 12.1
Definitions
For the purposes of this Chapter:
(a) "business person" means, for Mexico, a national of the European Union who enters the territory of Mexico, without the purpose of establishing temporary or permanent residence, to:
(i) commercially trade goods or provide services;
(ii) establish, develop or manage an investment of foreign capital;
(iii) conduct business contacts and negotiations for the sale of goods and services, or similar activities;
(iv) provide specialised services for installation, repair, maintenance, supervision or training of workers, previously agreed or considered in a contract of technology transfer, patents and trademarks, for the sale of commercial or industrial equipment or machinery, or any other production process of an enterprise established in the territory of a Party, during the term of the guarantee contract, sale or service;
(v) attend assemblies or sessions of the board of directors of a legally established enterprise in Mexico; or
(vi) promote goods or services, advise clients, receive orders, negotiate contracts and exhibit, participate or attend congresses, fairs, conventions or similar;
(b) "business visitors for investment purposes" means natural persons working in a senior position who are responsible for setting up an enterprise, who do not offer or provide services or engage in any economic activity other than required for investment purposes and do not receive remuneration from a source located within the host Party;
(c) "contractual service suppliers" means natural persons employed by an enterprise of a Party which itself is not an agency for placement and supply of services of personnel and is not acting through such an agency, which is not established in the territory of the other Party and which has concluded a bona fide contract to supply services with a final consumer in the other Party, requiring the presence on a temporary basis of its employees in that Party, in order to fulfil the contract to supply services; 58
(d) "independent professionals" means, for the European Union, natural persons engaged in the supply of a service and established as self-employed in the territory of a Party who are not established in the territory of the other Party and who have concluded a bona fide contract, other than through an agency for placement and supply services of personnel, to supply services with a final consumer in the other Party, requiring their presence on a temporary basis in that Party in order to fulfil the contract to supply services; 59
(e) "intra-corporate transferees" means natural persons who have been employed by an enterprise of a Party or have been partners in an enterprise of a Party, who are temporarily transferred to an enterprise of a Party, including a subsidiary, branch or parent company of that enterprise in the territory of the other Party, 60 and who are:
(i) "managers" or "executives", meaning persons working in a senior position within an enterprise, who primarily direct the management of the enterprise 61 in the other Party and receive general supervision or direction principally from the board of directors or from stockholders of the business or their equivalent, and who at least:
(A) direct the enterprise or a department or subdivision thereof;
(B) supervise and control the work of other supervisory, professional or managerial employees; and
(C) have the personal authority to recruit and dismiss or to recommend recruitment, dismissal or other personnel-related actions;
(ii) "specialists", meaning persons working in an enterprise who possess specialised knowledge essential to the enterprise's areas of activity, techniques or management, assessed taking into account the knowledge specific to the enterprise and whether the person has a high level of qualification; or
(iii) "trainee employees", meaning, for the European Union, persons who have been employed by an enterprise which is not a representative office for at least one year, possess a university degree and are temporarily transferred for career development purposes or to obtain training in business techniques or methods; 62
(f) "investors" means, for Mexico, natural persons of the European Union seeking to enter Mexico for a temporary stay or that are already in Mexico and intending to:
(i) explore different investment alternatives;
(ii) perform or supervise a direct investment;
(iii) represent a foreign enterprise or perform business transactions; or