DENIAL OF BENEFITS

CHAPTER IV FINAL PROVISIONS

ARTICLE 36 DENIAL OF BENEFITS

!, i---·-·-···---···-···-·-·-·-....... -·-···-·-·- ·--·-·-. ---- _________ ...... _ ...... _ .. ·--·-.. ···- ... ....... . .-

~ ;

i ,(i:

I

I I

• i

-~

CHAPTER IV

ARTICLE37 TRANSPARENCY

1. Each Party shall ensure that its laws, regulations and administrative rulings of general application pertaining to or affecting any matter covered by this Agreement are promptly published or otherwise made available in such a manner as to enable interested persons or the other Party to become acquainted with them. International agreements pertaining to or affecting investors or investment activities, to which a Party is a signatory, shall also be published.

2. To the extent feasible, each Party shall make the measures and international i

agreements of the kind referred to in paragraph I available on the internet. Each Party shall, upon request by the other Party, respond within a reasonable period of time to specific questions from and provide information to the other Party with respect to matters referred to in paragraph 1.

ARTICLE38

INFORMATION REQUIREMENTS AND DISCLOSURE OF INFORMATION

1. Notwithstanding Article 4 (National Treatment) and Article 5 (Most-Favoured-Nation Treatment), a Party may require an investor of the other Party, or its investment, to provide information concerning that investment solely for informational or statistical purposes. The Party shall protect such business information that is confidential from any disclosure that would prejudice the competitive position of the investor or its investment. Nothing in this paragraph shall be construed to prevent a Party from otherwise obtaining or disclosing information in connection with the equitable and good faith application of its law.

2. Nothing in this Agreement shall require either Party to provide confidential information the disclosure of which would impede law enforcement, or otherwise be contrary to the public interest, or which would prejudice the legitimate commercial interests of particular enterprises, public or private.

ARTICLE39

GENERAL EXCEPTIONS²²

Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination against the other Party or its investors where like conditions prevail, or a disgui'sed restriction on investments of investors of the other Party in the territory of a Party, nothing in this Agreement shall be construed to prevent the adoption or enforcement by a Party of measures:

(a) necessary to protect public morals or to maintain public order;²³

22 For greater certainty, the application of the general exceptions to these provisions shall not be interpreted so as to diminish the ability of governments to take measures where investors are not in like circumstances due to the existence of legitimate regulatory objectives.

(b) necessary to protect human, animal or plant life or health;

(c) necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Agreement including those relating to:

(i) the prevention of deceptive and fraudulent practices or to deal with the effects of a default on a contract;

(ii) the protection of the privacy of individuals in relation to the processing and dissemination of personal data and the protection of confidentiality of individual records and accounts;

(iii) safety;

(d) imposed for the protection of national treasures of artistic, historic or archaeological value; or

(e) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption. ²⁴

ARTICLE40

SECURITY EXCEPTIONS²⁵ Nothing in this Agreement shall be construed to:

(a) require a Party to furnish any information, the disclosure of which it considers contrary to its essential security interests; or

(b) preclude a Party from applying measures that it considers necessary for the fulfilment of its obligations with respect to the maintenance or restoration of international peace or security, or the protection of its own essential security interests.

23 The public order exception may be invoked only where a genuine and sufficiently serious threat is posed to ' one of the fundamental interests of society.

24 For greater certainty, this provision also applies to measures relating to the conservation of living and non- living exhaustible natural resources.

25 For greater certainty, nothing in this Agreement shall prevent a Party from taking any action which it considers necessary for the protection of critical public infrastructure, such as the communications, power, water and transportation infrastructure, including but not limited to imposing restrictions on operators of such infrastructure and preventing deliberate attempts intended to disable or degrade such infrastructure.

P~ge .29 of39

_ L

-'I' _,.-

"T -..

I (· ;.... .... . ... ---· •..• ··--... -·-- ... ·•·· ... • - ... " ·• ... --· ··--. . .... _ ...... - . ... ..

1 I

!

t

I·

•

'r-

1

' ^,_

ARTICLE 41

PRUDENTIAL MEASURES

~1.

1. Notwithstanding any other proviswns m this Agreement, a Party shall not be ~

prevented from taking measures in a non-discriminatory manner relating to financial services :~

for prudential reasons,²⁶ including measures for the protection of investors, depositors, policy ~ holders, or persons to whom a fiduciary duty is owed by a financial services supplier, or to ensure the integrity and stability of its financial system. j ~

>

2. Where the measures taken by a Party pursuant to paragraph 1 do not conform with

!

^~--

this Agreement, they shall not be used as a means of avoiding the commitments or , ·~:"

obligations of the Party under this Agreement.

3. Nothing m this Agreement shall be construed to reqmre a Party to disclose

!

^fl

information relating to the affairs and accounts of individual customers or any confidential or

i

~ l ^:-1 .~

proprietary information in the possession of public entities.

!

~

ARTICLE 42

PROMOTION AND FACILITATION OF INVESTMENT

1. Subject to its laws and regulations, each Party shall endeavour to cooperate in the facilitation of investments between the Parties including through:

(a) (b) (c)

creating the necessary environment for all forms of investments;

simplifying procedures for investment applications and approvals;

promoting dissemination of investment information, including investment rules, regulations, policies and procedures; and

!

^:1

l

i ~

I;,

!

i

~

i I

! i ~ i J

I

^;·I

! i i .

i "

I

j,

i

! ~ j

(d) establishing an appropriate mechanism, to the extent possible, to provide i i ., assistance and advisory services to investors including facilitation of operating ¹

I. Icences an permits. d . 1,_ } .-~

i

~- 2. Subject to its laws and regulations, cooperation activities under subparagraph ( 1 )(d) may be built on existing agreements or arrangements already m place for economic cooperation.

3. Nothing in this Article shall be construed to affect any obligation in the provisions of Chapter II (Protection), or be subject to or otherwise affect any dispute resolution proceedings under this Agreement.

:

i _I

.

:

~

! I

!

~~

l •

! '

i

~~

i ' i ., •

!

~~

It<

I ,

26 The Parties understand that the term 'prudential reasons' includes the maintenance of the safety, soundness,

I

W

integrity, or financial responsibility of individual financial service suppliers as well as the safety, and financial

i

~

f' ,, and operational integrity of payment and clearing systems.

L

¹

, Page 30 of 39 •

! ~

r

. A. ... _ ... _______ .. --· · ---- ... ---- - ---.. --- ... . ... _ __________ __ .. ___ _ __________ .. __ -- _______ .. _ .. _ ---- - -- ______ ... ... ... ... . .. , r"~

_<&_ < . ,._ ''• . --~·

ARTICLE 43