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Complete Home and Office Legal Guide (Chestnut) (1993).ISO
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1993-05-22
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Chapter Fourteen
Financial Services
Article 1401: Scope
1. This Chapter shall apply to measures adopted or maintained
by a Party relating to:
(a) financial institutions of another Party;
(b) investors of another Party, and investments of such
investors, in financial institutions in the Party's
territory; and
(c) cross-border trade in financial services.
2. Only Articles 1109 (Transfers), 1110 (Expropriation and
Compensation), 1111 (Special Formalities and Information
Requirements), 1113 (Denial of Benefits), 1114 (Environmental
Measures) and Articles 1115 to 1136 (Settlement of Disputes
Between a Party and an Investor of Another Party) of Chapter
Eleven (Investment) and Article 1211 (Denial of Benefits) of
Chapter Twelve (Cross-Border Trade in Services) shall apply to
this Chapter. Article 1802(2) (Publication) shall not apply to
this Chapter.
3. In the event of any inconsistency between a provision of
this Chapter and any other provision of this Agreement, the
former shall prevail to the extent of the inconsistency. This
paragraph does not apply to Article 2103 (Taxation).
4. Nothing in this Chapter shall prevent a Party from being the
exclusive service provider in its territory with respect to the
following:
(a) activities forming part of a public retirement plan or
statutory system of social security; and
(b) activities conducted by a public entity for the account
or with the guarantee or using the financial resources
of the government or of any other public entity.
5. Article 1407 shall not apply to the granting by a Party to a
financial service provider of an exclusive right to provide a
financial service referred to in paragraph 4(a).
6. Each Party shall comply with Annex 1401.6.
Article 1402: Self-Regulatory Organizations
Where a Party requires financial service providers of
another Party to be members of, participate in, or have access
to, a self-regulatory organization to provide a financial service
in the territory of that Party, the Party shall ensure observance
by such organization of this Chapter.
Article 1403: Regulatory Measures
1. Nothing in this Part shall be construed to prevent a Party
from adopting or maintaining reasonable measures for prudential
reasons, such as:
(a) the protection of investors, depositors, financial
market participants, policy-holders, policy-claimants
or persons to whom a fiduciary duty is owed by a
financial service provider or financial institution;
(b) the maintenance of the safety, soundness, integrity or
financial responsibility of financial service providers
or financial institutions; and
(c) ensuring the integrity and stability of a Party's
financial system.
2. Nothing in this Part applies to non-discriminatory measures
of general application taken by any public entity in pursuit of
monetary and related credit policies or exchange rate policies.
This paragraph shall not affect a Party's obligations under
Article 1106 (Performance Requirements), Article 1109 (Transfers)
and Article 2104 (Balance of Payments).
Article 1404: Establishment
1. The Parties recognize the principle that financial service
providers of a Party should be permitted to establish financial
institutions in the territory of another Party in the juridical
form determined by the provider.
2. The Parties also recognize the principle that financial
service providers of a Party should be permitted to participate
widely in the market of another Party through the ability:
(a) to provide in that other Party's territory a range of
financial services through separate financial
institutions as may be required by that Party;
(b) to expand geographically within that territory; and
(c) to own financial institutions without the application
of ownership requirements specific to foreign financial
institutions.
3. Each Party shall permit financial service providers of
another Party that are not already established in its territory
to establish financial institutions in the Party's territory. A
Party may:
(a) require such financial service providers to incorporate
such financial institutions under its laws; or
(b) impose other terms, conditions and procedures on
establishment that are consistent with Article 1407.
4. At such time as the United States liberalizes its existing
measures to permit commercial banks of another Party located in
its territory to expand throughout significantly all the United
States market either through subsidiaries or direct branches, the
Parties shall review and assess market access in each Party,
subject to Annex 1404.4, with respect to the principles in
paragraphs 1 and 2 with a view to adopting arrangements
permitting investor choice as to juridical form of establishment
by commercial banks.
5. Each Party shall permit financial institutions of another
Party to transfer and process information outside the territory
of the Party in electronic or other form as is necessary for the
conduct of ordinary business of such institutions.
Article 1405: Cross-Border Trade
1. No Party may adopt any measure restricting any type of
cross-border trade in financial services by financial service
providers of another Party that is permitted on the date of entry
into force of this Agreement, except to the extent set out in
Part B of the Party's Schedule to Annex VII.
2. Each Party shall permit persons located in its territory,
and its nationals wherever located, to purchase financial
services from financial service providers of another Party
located in the territory of that other Party or another Party,
provided that the Party is not required, in order to fulfill this
obligation, to permit such providers to do business or solicit in
its territory. Subject to paragraph 1, each Party may, for this
purpose, define "doing business" and "solicitation."
3. Without prejudice to prudential regulation by other means, a
Party may require registration of financial service providers of
another Party and financial instruments.
4. The Parties shall consult on future liberalization of cross-
border trade in financial services, as set out in Annex 1405.4.
Article 1406: New Financial Services
1. Each Party shall permit a financial institution of another
Party to provide any new financial service of a type similar to
those that the Party permits its financial institutions, in like
circumstances, to provide under its domestic law. A Party may
determine the institutional and juridical form through which such
service may be provided.
2. A Party may require authorization for the provision in its
territory of a financial service referred to in paragraph 1.
Where such authorization is required, a decision shall be made
within a reasonable period of time and may only be refused for
prudential reasons.
Article 1407: National Treatment
1. Each Party shall accord to investors of another Party and
financial service providers of another Party national treatment
with respect to the establishment, acquisition, expansion,
management, conduct, operation and sale or other disposition of
investments in financial institutions in its territory.
2. Each Party shall accord to the financial institutions of
another Party national treatment.
3. Where a Party permits the cross-border provision of a
financial service, it shall accord national treatment to
financial service providers of another Party in the provision of
such cross-border service.
4. "National treatment" means treatment no less favorable than
that accorded by a Party to its own investors, financial service
providers and financial institutions in like circumstances.
5. A measure of a Party, whether it accords to financial
service providers or financial institutions of another Party
different or identical treatment compared to that it accords to
its own providers or institutions in like circumstances, shall be
deemed to be consistent with paragraph 4, if it accords equal
competitive opportunities.
6. A measure accords equal competitive opportunities i