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Investment Agreements in the Western Hemisphere: A Compendium

Bilateral Free Trade Agreements


III. Treatment | B. Exceptions and Reservations

Free Trade Agreement Between Bolivia and Mexico

Articles 15-03 to 15-06 [National Treatment; Most-Favored-Nation Treatment; Performance Requirements; and Senior Management and Boards of Directors] do not apply to any inconsistent measure maintained by a Party in accordance with its legislation at the time this Agreement enters into force, whatever the level or order of government. Each Party shall list these measures in Annex 1 to this Article within no more than one year from the entry into force of this Agreement. No measure adopted by a Party in the future may be more restrictive than those in force at the time this Agreement enters into effect. (Article 15-07(1)).

Articles 15-03 to 15-06 shall not apply to any inconsistent measure adopted or maintained by a Party concerning any activities listed in Annex 2 to this Article at the time of signature of this Agreement. The Parties, in adopting or maintaining such incompatible measures, shall endeavor to achieve a global equilibrium in their obligations. After a period of two years has elapsed from the entry into force of this Agreement, no measure adopted by a Party shall be more restrictive than those in effect at the end of said period. (Article 15-07(2)).

Treatment granted by a Party in accordance with Article 15-04 does not apply to the treaties or sectors specified in the list of the annex to this Article. (Article 15-07(3)).

Articles 15-03, 15-04, and 15-06 do not apply to:

a) procurement by a Party or a State enterprise; or
b) subsidies, including loans, guarantees and governmental insurance granted by a Party or by a State enterprise. (Article 15-07(4)).

The provisions contained in:

a) subparagraphs a) to c) of paragraph 1 and subparagraphs a) and b) of paragraph 3 of Article 15-05 do not apply to requirements for egilibility of the goods and services with respect to export-promotion programs; b) subparagraphs b), c), f) and g) of paragraph 1 and subparagraphs a) and b) of Article 15-05 do not apply to procurement by a Party or a State enterprise; and c) subparagraphs a) and b) of paragraph 3 of Article 15-05 do not apply to requirements imposed by an importing Party concerning the necessary content of goods for qualifying for preferential tariffs or quotas. (Article 15-07(5)).

This Chapter does not apply to:

a) economic activities reserved for each Party, pursuant to its current legislation, which shall be listed within a period of no longer than one year from the entry into force of this Agreement; b) measures adopted or maintained by a Party in the area of financial services; and c) measures adopted by a Party to restrict the participation of investments of investors of the other Party in its territory for reasons of national security. (Article 15-02(3)).

If a Party has granted or subsequently grants special treatment to investors of a third country, or investments made by these investors, by virtue of agreements to avoid double taxation or establishing free trade areas, customs unions, common markets, economic or monetary unions or similar arrangements, said Party shall not be obliged to grant the same treatment to investors or investments of the other Party. (Article 15-04(2)).

Denial of Benefits

Subject to prior notification and consultation with the other Party, a Party may deny the benefits of this chapter to an investor from the other Party who is an enterprise of the Party and to investments of that investor, when investors from a non-Party country are majority owners or control the enterprise and it does not have substantial business activities in the territory of the Party under whose legislation it is established or organized. (Article 15-12).

Free Trade Agreement Between Costa Rica and Mexico

Articles 13-03, 13-04, 13-06 and 13-07 [National Treatment; Most-Favored-Nation Treatment; Performance Requirements; and Senior Management and Boards of Directors] do not apply to any inconsistent measure maintained by a Party in accordance with its legislation at the time this Agreement enters into force, whatever the level or order of government. Each Party shall list these measures in Annex 1 to this Article within no more than one year from the entry into force of this Agreement. No measure adopted by a Party in the future may be more restrictive than those in force at the time this Agreement enters into effect. (Article 13-08(1)).

Treatment granted by a Party in accordance with Article 13-04 does not apply to the treaties or sectors listed within a period of no longer than one year from the entry into force of this Agreement. (Article 13-08(2)).

Articles 13-03, 13-04, and 13-07 do not apply to:

a) procurement by a Party or a State enterprise; or
b) subsidies or contributions, including loans, guarantees and governmental insurance granted by a Party or by a State enterprise, except as provided in Article 13-05(2). (Article 13-08(3)).

This Chapter does not apply to:

a) economic activities reserved for each Party, pursuant to its current legislation on the date of signature of this Agreement, which shall be listed within a period of no longer than one year from the entry into force of this Agreement; b) measures adopted or maintained by a Party in the area of financial services; and c) measures adopted by a Party to restrict the participation of investments of investors of the other Party in its territory for reasons of public order or national security. (Article 13-02(2)).

If a Party has granted special treatment to investors of a third country, or investments made by these investors, by virtue of agreements establishing free trade areas, customs unions, common markets, economic or monetary unions or similar arrangements, said Party shall not be obliged to grant the same treatment to investors or investments of the other Party (Article 13-04(2)).

Denial of Benefits

Subject to prior notification and consultation with the other Party, a Party may deny the benefits of this chapter to an investor of the other Party who is an enterprise of the Party and to the investments of this investor if investors of a country that is not a Party are owners or control the enterprise, under the terms indicated in the definition of "investment of an investor of a Party" in Article 13-01, and the enterprise does not have substantial business activities in the territory of the Party under whose legislation it is established or organized. (Article 13-13).

Free Trade Agreement Between Canada and Chile

Articles G-02 [National Treatment], G-03 [Most-Favoured-Nation Treatment], G-06 [Performance Requirements] and G-07 [Senior Management and Boards of Directors] 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 G-02, G-03, G-06 and G-07. (Article G-08(1)). Articles G-02, G-03, G-06 and G-07 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 G-08(2)). Neither Party may, under any measure adopted after the date of entry into force of this Agreement and covered by its Schedule to Annex II, require an investor of the other Party, by reason of its nationality, to sell or otherwise dispose of an investment existing at the time the measure becomes effective. (Article G-08(3)). Articles G-02 and G-03 do not apply to any measure that is an exception to, or derogation from, a Party's obligations under the TRIPS Agreement, as specifically provided for in that agreement. (Article G-08 (4)). Article G-03 does not apply to treatment accorded by a Party pursuant to agreements, or with respect to sectors, set out in its Schedule to Annex III. (Article G-08(5)).

Articles G-02, G-03 and G-07 do not apply to:

a) procurement by a Party or a state enterprise; or
b) subsidies or grants provided by a Party or a state enterprise, including government-supported loans, guarantees and insurance. (Article G-08(6)).

The provisions of:

a) Article G-06(1)(a), (b) and (c), and (3)(a) and (b) do not apply to qualification requirements for goods or services with respect to export promotion and foreign aid programs;
b) Article G-06(1)(b), (c), (f) and (g), and (3)(a) and (b) do not apply to procurement by a Party or a state enterprise; and
c) Article G-06(3)(a) and (b) do not apply to requirements imposed by an importing Party relating to the content of goods necessary to qualify for preferential tariffs or preferential quotas. (Article G-08(7)).

Denial of Benefits

A Party may deny the benefits of this Chapter to an investor of the other Party that is an enterprise of such Party and to investments of such investor if investors of a non-Party own or control the enterprise and the denying Party:

a) does not maintain diplomatic relations with the non-Party; or
b) 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 to its investments. (Article G-13(1)).

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 an investor of the other Party that is an enterprise of such Party and to investments of such investors if investors of a non-Party own or control the enterprise and the enterprise has no substantial business activities in the territory of the Party under whose law it is constituted or organized. (Article G-13(2)).

 
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