FOR THE GOVERNMENT OF AUSTRALIA:

………………………………………...

FOR THE GOVERNMENT OF THE REPUBLIC OF CHILE:

………………………………………...

Stephen Smith

Minister for Foreign Affairs

Alejandro Foxley Rioseco

Minister of Foreign Affairs

All Sectors

National Treatment (Articles 9.3 and 10.3)

Most-Favoured-Nation Treatment (Articles 9.4 and 10.4)

Local Presence (Article 9.6)

Performance Requirements (Article 10.7)

Senior Management and Boards of Directors (Article 10.8)

Regional

All existing non-conforming measures at the regional level of government.

Cross-Border Trade in Services and Investment

All existing non-conforming measures at the regional level of government.

All Sectors

National Treatment (Article 10.3)

Senior Management and Boards of Directors (Article 10.8)

Central

Australia’s Foreign Investment Policy, which comprises the Foreign Acquisitions and Takeovers Act 1975 (Cth) (FATA);

Foreign Acquisitions and Takeovers Regulations 1989 (Cth); Financial Sector (Shareholdings) Act 1998 (Cth); and Ministerial Statements.

Investment

The following investment activities require notification and prior approval from the Australian Government:

• proposed acquisitions by foreign persons^23-[63] of substantial interests^23-[64] in existing Australian businesses with total assets valued at more than $A100 million;
• proposals by foreign persons to take over offshore companies whose Australian subsidiaries or gross assets account for 50 per cent or more of the target company’s global assets and are valued at more than $A100 million;
• proposals by foreign persons to take over offshore companies whose Australian subsidiaries or gross assets account for less than 50 per cent of the target company’s global assets and are valued at more than $A200 million;
• proposals by foreign persons to establish new businesses in Australia involving a total investment of $A10 million or more;
• proposed direct investments by foreign governments or their agencies, irrespective of size;
• proposed direct (non-portfolio) investments by foreign persons in the media sector, irrespective of size, and all portfolio investments of five per cent or more in existing businesses in the media sector;
• proposed acquisitions by foreign persons of interests in urban land (including interests that arise via leases, financing and profit sharing arrangements and the acquisitions of interests in urban land corporations and trusts) that involve the:
  • proposed acquisition of developed non‑residential commercial real estate where the property is valued at $A5 million or more and is subject to heritage listing; or
  • proposed acquisition of developed non‑residential commercial real estate where the property is valued at $A50 million or more and is not subject to heritage listing; and
• proposals where any doubt exists as to whether they are notifiable (funding arrangements that include debt instruments having quasi-equity characteristics will be treated as direct foreign investment).

Notified investments may be refused, subject to interim orders, and/or approved subject to compliance with certain conditions.

Separate or additional requirements may apply to measures subject to other Annex I non-conforming measures and to sectors, sub-sectors or activities subject to Annex II.

All sectors

Senior Management and Boards of Directors (Article 10.8)

Central

Corporations Act 2001 (Cth)

Corporations Regulations 2001 (Cth)

Investment

At least one director of a private company must be ordinarily resident in Australia.

At least two directors of a public company must be ordinarily resident in Australia.

At least one secretary of a private company (if such a private company appoints one or more secretaries) must be ordinarily resident in Australia.

At least one secretary of a public company must be ordinarily resident in Australia.

Professional Services

Local Presence (Article 9.6)

Central

Patents Act 1990 (Cth)

Patent Regulations (Cth)

Cross-Border Trade in Services

In order to register to practise in Australia, patent attorneys must be ordinarily resident in Australia^23-[65].

Professional Services

National Treatment (Article 9.3)

Most-Favoured-Nation Treatment (Article 9.4)

Central

Migration Act 1958 (Cth)

Cross-Border Trade in Services

To practise as a migration agent in Australia a person must be an Australian citizen or permanent resident or a citizen of New Zealand with a special category visa.

Professional Services

Local Presence (Article 9.6)

Central

Corporations Act 2001 (Cth)

Cross-Border Trade in Services

A person who is not ordinarily resident in Australia may be refused registration as a company auditor. At least one partner in a firm providing auditing services must be a registered company auditor who is ordinarily resident in Australia.

Fishing and Pearling

National Treatment (Articles 9.3 and 10.3)

Central

Fisheries Management Act 1991 (Cth)

Foreign Fishing Licences Levy Act 1991 (Cth)

Cross-Border Trade in Services and Investment

Foreign fishing vessels^23-[66] seeking to undertake fishing activity in the Australian Fishing Zone must be authorised.

Where foreign fishing vessels are authorised to undertake such fishing activity, they may be subject to a levy^23-[67].

Professional Services

National Treatment (Article 9.3)

Local Presence (Article 9.6)

Central

Customs Act 1901 (Cth)

Cross-Border Trade in Services

To act as a customs broker^23-[68] in Australia, service suppliers must provide the service in and from Australia.

Telecommunications

National Treatment (Article 10.3)

Senior Management and Boards of Directors (Article 10.8)

Central

Telstra Corporation Act 1991 (Cth)

Investment

Aggregate foreign equity is restricted to no more than 35 per cent of shares of Telstra. Individual or associated group foreign investment is restricted to no more than five per cent of shares.

The Chairperson and a majority of directors of Telstra must be Australian citizens and Telstra is required to maintain its head office, main base of operations and place of incorporation in Australia.

Health Services

National Treatment (Article 10.3)

Senior Management and Boards of Directors (Article 10.8)

Central

Commonwealth Serum Laboratories Act 1961 (Cth)

Investment

The votes attached to significant foreign shareholdings^23-[69] are prevented from being counted in respect to the appointment, replacement or removal of more than one third of CSL’s directors who hold office at a particular time. The head office and principal facilities used to produce products derived from human plasma collected from blood or plasma donated by individuals in Australia must remain in Australia. Two-thirds of the directors of the board of CSL and the chairperson of any meeting must be Australian citizens. CSL must not seek incorporation outside of Australia.

Transport Services

National Treatment (Articles 9.3 and 10.3)

Local Presence (Article 9.6)

Central

Trade Practices Act 1974 (Cth)

Cross-Border Trade in Services and Investment

Every ocean carrier who provides international liner cargo shipping services to or from Australia must, at all times, be represented by a natural person who is resident in Australia.

Only Australian flag operators may apply to the Australian Competition and Consumer Commission to examine whether conference members, and non-conference operators with substantial market power, are hindering other shipping operators from engaging efficiently in the provision of outward liner cargo services to an extent that is reasonable.

Transport

National Treatment (Article 10.3)

Senior Management and Boards of Directors (Article 10.8)

Central

Air Navigation Act 1920 (Cth)

Ministerial Statement

Investment

Total foreign ownership of Australian international airlines (other than Qantas) is restricted to a maximum of 49 per cent.

Furthermore, it is required that:

• at least two-thirds of the Board members must be Australian citizens;
• the Chairperson of the Board must be an Australian citizen;
• the airline’s head office must be in Australia; and
• the airline’s operational base must be in Australia.

Transport

National Treatment (Article 10.3)

Senior Management and Boards of Directors (Article 10.8)

Central

Qantas Sale Act 1992 (Cth)

Investment

Total foreign ownership of Qantas Airways Ltd is restricted to a maximum of 49 per cent in aggregate, with individual foreign holdings limited to 25 per cent and aggregate holdings by foreign airlines to 35 per cent. In addition:

• the head office of Qantas must always be located in Australia;
• the majority of Qantas’ operational facilities must be located in Australia;
• at all times, at least two-thirds of the directors of Qantas must be Australian citizens;
• at a meeting of the board of directors of Qantas, the director presiding at the meeting (however described) must be an Australian citizen; and
• Qantas is prohibited from taking any action to become incorporated outside Australia.

All Sectors

National Treatment (Article 10.3)

Central

Decree Law 1939, Official Gazette, November 10, 1977, Rules for acquisition, administration and disposal of State owned assets, Title I (Decreto Ley 1939, Diario Oficial, noviembre 10, 1977, Normas sobre adquisición, administración y disposición de bienes del Estado, Título I)

Decree with Force of Law (D.F.L.) 4 of the Ministry of Foreign Affairs, Official Gazette, November 10, 1967 (Decreto con Fuerza de Ley (D.F.L.) 4 del Ministerio de Relaciones Exteriores, Diario Oficial, noviembre 10, 1967)

Investment

Chile may only dispose of the ownership or other rights over “State land” to Chilean natural or juridical persons, unless the applicable legal exceptions, such as in Decree Law 1939 (Decreto Ley 1939), apply. “State land” for these purposes refers to State owned land up to a distance of 10 kilometers from the border and up to a distance of five kilometers from the coastline.

Corporeal immovable property situated in areas declared “the borderland zone” by virtue of D.F.L 4 of the Ministry of Foreign Affairs, 1967 (D.F.L. 4 del Ministerio de Relaciones Exteriores, 1967) may not be acquired, either as property or in any other title, by (1) natural persons with nationality of a neighbouring country; (2) juridical persons with their principal seat in a neighbouring country; (3) juridical persons with 40 per cent or more of capital owned by natural persons with nationality of a neighbouring country; or (4) juridical persons effectively controlled by such natural persons. Notwithstanding the foregoing, this limitation may not apply if an exemption is granted by a Supreme Decree (Decreto Supremo) of the President of the Republic based on considerations of national interest.

All Sectors

National Treatment (Article 9.3)

Local Presence (Article 9.6)

Central

D.F.L. 1 of the Ministry of Labour and Social Welfare, Official Gazette, January 24, 1994, Labour Code, Preliminary Title, Book I, Chapter III (D.F.L. 1 del Ministerio del Trabajo y Previsión Social, Diario Oficial, enero 24, 1994, Código del Trabajo, Título preliminar, Libro I, Capítulo III)

Cross-Border Trade in Services

A minimum of 85 per cent of employees who work for the same employer shall be Chilean natural persons. This rule applies to employers with more than 25 employees under a contract of employment (contrato de trabajo). Expert technical personnel who cannot be replaced by Chilean personnel shall not be subject to this provision, as determined by the Directorate of Labour (Dirección del Trabajo).

An employee shall be understood to mean any natural person who supplies intellectual or material services, under dependency or subordination, pursuant to a contract of employment.

Article 20 of the Código del Trabajo shall be understood to mean that the personnel that an investor of Australia that has made an investment under Chapter 10 (Investment) requires for starting up in Chile will be treated, for a period of 18 months from the date of start up, as specialised technical personnel that cannot be replaced by national personnel.

For greater certainty, a contrato de trabajo is not mandatory for the supply of cross–border trade in services.

Communications

National Treatment (Articles 9.3 and 10.3)

Most-Favoured-Nation Treatment (Articles 9.4 and 10.4)

Performance Requirements (Article 10.7)

Senior Management and Boards of Directors (Article 10.8)

Local Presence (Article 9.6)

Central

Law 18.838, Official Gazette, September 30, 1989, National Television Council, Titles I, II and III (Ley 18.838, Diario Oficial, septiembre 30, 1989, Consejo Nacional de Televisión, Títulos I, II y III)

Law 18.168, Official Gazette, October 2, 1982, General Telecommunications Law, Titles I, II and III (Ley 18.168, Diario Oficial, octubre 2, 1982, Ley General de Telecomunicaciones, Títulos I, II y III)

Law 19.733, Official Gazette, June 4, 2001, Law on Liberties of Opinion and Information and the Exercise of Journalism, Titles I and III (Ley 19.733, Diario Oficial, junio 4, 2001, Ley sobre las Libertades de Opinión e Información y Ejercicio del Periodismo, Títulos I y III)

Investment and Cross-Border Trade in Services

The owner of a social communication medium such as sound and image transmissions or a national news agency, shall in the case of a natural person have a duly established domicile in Chile and in the case of a juridical person shall be constituted with domicile in Chile or have an agency authorised to operate within the national territory. Only Chilean nationals may be president, administrators or legal representatives of the juridical person. In the case of public radio broadcasting services, the board of directors may include foreigners only if they do not represent the majority. The legally responsible director and the person who subrogates him/her must be Chilean with domicile and residence in Chile.

Requests for public radio broadcasting concessions submitted by juridical persons in which foreigners hold an interest exceeding 10 per cent of the capital shall be granted only if proof is previously provided verifying that similar rights and obligations as those that the applicants will enjoy in Chile are granted to Chilean nationals in their country of origin.

The National Television Council may establish, as a general requirement, that programs broadcast through public (open) television channels include up to 40 per cent of Chilean production.

Only juridical persons duly constituted in Chile and having domicile in Chile may be the titleholders or make use of permits for radio broadcasting telecommunications services. Only Chilean nationals may be president, managers or legal representatives of the juridical person.

Only juridical persons duly constituted in Chile and having domicile in Chile may be the titleholders or make use of permits for limited cable television or microwave television services. Only Chilean nationals may be president, directors, managers, administrators or legal representatives of the juridical person.

Energy

CPC 12 Crude petroleum and gas natural

CPC 13 Uranium and thorium ores

CPC 14 Metal ores

CPC 16 Other minerals

National Treatment (Article 10.3)

Performance Requirements (Article 10.7)

Central

Political Constitution of the Republic of Chile, Chapter III (Constitución Política de la República de Chile, Capítulo III)

Law 18.097, Official Gazette, January 21, 1982, Constitutional Organic Law on Mining Concessions, Titles I, II and III (Ley 18.097, Diario Oficial, enero 21, 1982, Orgánica Constitucional sobre Concesiones Mineras, Títulos I, II y III)

Law 18.248, Official Gazette, October 14, 1983, Mining Code, Titles I and II (Ley 18.248, Diario Oficial, octubre 14, 1983, Código de Minería, Títulos I y II)

Law 16.319, Official Gazette, October 23, 1965, Creates the Chilean Nuclear Energy Commission, Titles I, II and III (Ley 16.319, Diario Oficial, octubre 23, 1965, crea la Comisión Chilena de Energía Nuclear, Títulos I, II y III)

Investment

The exploration, exploitation, and treatment (beneficio) of liquid or gaseous hydrocarbons, deposits of any kind existing in sea waters subject to national jurisdiction, and deposits of any kind wholly or partially located in areas classified as important to national security with mining effects, which qualification shall be made by law only, can be the object of administrative concessions or special operating contracts, subject to the requirements and the conditions to be determined, in each case by a Supreme Decree of the President of the Republic. For greater certainty, it is understood that the term “treatment” (beneficio) shall not include the storage, transportation or refining of the energy material referred to in this paragraph.

The production of nuclear energy for peaceful purposes may only be carried out by the Chilean Nuclear Energy Commission (Comisión Chilena de Energía Nuclear) or, with its authorisation, jointly with third persons. Should the Commission grant such an authorisation, it may determine the terms and conditions thereof.

Mining

CPC 13 Uranium and thorium ores

CPC 14 Metal ores

CPC 16 Other minerals

National Treatment (Article 10.3)

Performance Requirements (Article 10.7)

Central

Political Constitution of the Republic of Chile, Chapter III (Constitución Política de la República de Chile, Capítulo III)

Law 18.097, Official Gazette, January 21, 1982, Constitutional Organic Law on Mining Concessions, Titles I, II and III (Ley 18.097, Diario Oficial, enero 21, 1982, Orgánica Constitucional sobre Concesiones Mineras, Títulos I, II y III)

Law 18.248, Official Gazette, October 14, 1983, Mining Code, Titles I and III (Ley 18.248, Diario Oficial, octubre 14, 1983, Código de Minería, Títulos I y III)

Law 16.319, Official Gazette, October 23, 1965, Creates the Chilean Nuclear Energy Commission, Titles I, II and III (Ley 16.319, Diario Oficial, octubre 23, 1965, crea la Comisión Chilena de Energía Nuclear, Títulos I, II y III)

Investment

The exploration, exploitation, and treatment (beneficio) of lithium, deposits of any kind existing in sea waters subject to national jurisdiction, and deposits of any kind wholly or partially located in areas classified as important to national security with mining effects, which qualification shall be made by law only, can be the object of administrative concessions or special operating contracts, subject to the requirements and the conditions to be determined, in each case by a Supreme Decree of the President of the Republic.

Chile has the right of first refusal, at the customary market prices and terms, for the purchase of mineral products from mining operations in Chile when thorium or uranium are contained in significant amounts therein.

For greater certainty, Chile may demand that producers separate from mining products the portion of:

(1) liquid or gaseous hydrocarbons;

(2) lithium;

(3) deposits of any kind existing in sea waters subject to national jurisdiction; and

(4) deposits of any kind wholly or partially located in areas classified as important to national security with mining effects, which qualification shall be made by law only, that exists, in significant amounts, in such mining products and that can be economically and technically separated, for delivery to or for sale on behalf of the State. For these purposes, “economically and technically separated” means that the costs incurred to recover the four types of substances referred to above through a sound technical procedure and to commercialise and deliver those substances shall be lower than their commercial value.

Extracted natural atomic materials and lithium, and their concentrates, derivatives and compounds, cannot be subject to any kind of juridical acts, unless executed or entered into by the Chilean Nuclear Energy Commission (Comisión Chilena de Energía Nuclear), or with its prior authorisation. Should the Commission grant an authorisation, it shall determine, in turn, the conditions granted therein.

Fisheries

Aquaculture

CPC 04 Fish and other fishing products

National Treatment (Article 10.3)

Central

Law 18.892, Official Gazette, January 21, 1992, General Law on Fisheries and Aquaculture, Titles I and VI (Ley 18.892, Diario Oficial, enero 21, 1992, Ley General de Pesca y Acuicultura, Títulos I y VI)

Investment

A concession or authorisation is required for the use of beaches, land adjacent to beaches (terrenos de playas), water-columns (porciones de agua) and sea-bed lots (fondos marinos) to engage in aquaculture activities.

Only Chilean natural or juridical persons constituted in accordance with Chilean law and foreigners with permanent residency may hold an authorisation or concession to carry out aquaculture activities.

Fisheries

CPC 04 Fish and other fishing products

National Treatment (Articles 9.3 and 10.3)

Most-Favoured-Nation Treatment (Articles 9.4 and 10.4)

Senior Management and Boards of Directors (Article 10.8)

Local Presence (Article 9.6)

Central

Law 18.892, Official Gazette, January 21, 1992, General Law on Fisheries and Aquaculture, Titles I, III, IV and IX (Ley 18.892, Diario Oficial, enero 21, 1992, Ley General de Pesca y Acuicultura, Títulos I, III, IV y IX)

Decree Law 2.222, Official Gazette, May 31, 1978, Navigation Law, Titles I and II (Decreto Ley 2.222, Diario Oficial, mayo 31, 1978, Ley de Navegación, Títulos I y II)

Investment and Cross-Border Trade in Services

A permit issued by the Vice-Ministry of Fishing (Subsecretaría de Pesca) is required in order to harvest and catch hydrobiological species in internal waters, in the territorial sea and in the exclusive economic zone.

Only Chilean natural persons or juridical persons constituted in accordance with Chilean law and foreigners with permanent residency may hold permits to harvest and catch hydrobiological species.

Only Chilean vessels are permitted to fish in internal waters, in the territorial sea and in the exclusive economic zone. “Chilean vessels” are those defined in the Navigation Law (Ley de Navegación). Access to industrial extractive fishing activities shall be subject to prior registration of the vessel in Chile.

Only a Chilean natural or juridical person may register a vessel in Chile. Such juridical person must be constituted in Chile with principal domicile and real and effective seat in Chile. The president, manager and the majority of the directors or administrators must be Chilean natural persons. In addition, more than 50 per cent of its equity capital must be held by Chilean natural or juridical persons. For these purposes, a juridical person with ownership participation in another juridical person that owns a vessel has to comply with all the requirements mentioned above.

A joint ownership (comunidad) may register a vessel if (1) the majority of the joint ownership is Chilean with domicile and residency in Chile; (2) the administrators are Chilean natural persons; and (3) the majority of the rights of the joint ownership (comunidad) belong to a Chilean natural or juridical person. For these purposes, a juridical person with ownership participation in a joint ownership (comunidad) that owns a vessel has to comply with all the requirements mentioned above.

An owner (natural or juridical person) of a fishing vessel registered in Chile prior to June 30, 1991 shall not be subject to the nationality requirement mentioned above.

In cases of reciprocity granted to Chilean vessels by any other country, fishing vessels specifically authorised by the maritime authorities pursuant to powers conferred by law may be exempted from the requirements mentioned above on equivalent terms provided to Chilean vessels by that country.

Access to small-scale fishing (pesca artesanal) activities shall be subject to registration in the registry for small-scale fishing (Registro de Pesca Artesanal). Registration for small-scale fishing (pesca artesanal) is only granted to Chilean natural persons and foreign natural persons with permanent residency, or a Chilean juridical person constituted by the aforementioned persons.

Sports, Industrial Fishing and Hunting, and Recreational Services

CPC 881 Services incidental to agriculture, hunting and forestry

CPC 882 Services incidental to fishing

CPC 96499 Other recreational services n.e.c.

Local Presence (Article 9.6)

Central

Law 17.798, Official Gazette, October 21, 1972, Title I (Ley 17.798, Diario Oficial, octubre 21, 1972, Título I)

Supreme Decree 77 of the Ministry of National Defence, Official Gazette, August 14, 1982 (Decreto Supremo 77 del Ministerio de Defensa Nacional, Diario Oficial, agosto 14, 1982)

Cross-Border Trade in Services

Any person who owns guns, explosives or similar substances must register with the appropriate authority in its domicile, for which purpose a request shall be submitted to the General Directorate for National Mobilisation of the Ministry of National Defence (Dirección General de Movilización Nacional del Ministerio de Defensa Nacional).

Any natural or juridical person registered as an importer of fireworks may request authorisation for importation and entrance thereof into Chile from Group No. 3 of the General Directorate for National Mobilisation and may keep stocks of the said elements for sale to persons holding authorisation to stage pyrotechnical shows.

The Supervisory Authority (Autoridad Fiscalizadora) shall only authorise pyrotechnical shows if a report is available with regard to the installation, development, and security measures for the show, which must be signed and approved by a fireworks programmer registered in the national registries of the General Directorate for National Mobilisation or by a professional certified by the said General Directorate.

For the production and execution of pyrotechnical shows, the presence of at least a fireworks expert handler registered with the General Directorate shall be required.

Specialised Services

Customs Agents (Agentes de Aduana) and Brokers (Despachadores de Aduana)

CPC 748 Freight transport agency services

CPC 749 Other supporting and auxiliary transport services

National Treatment (Article 9.3)

Local Presence (Article 9.6)

Central

D.F.L. 30 of the Ministry of Finance, Official Gazette, April 13, 1983, Book IV (D.F.L. 30 del Ministerio de Hacienda, Diario Oficial, abril 13, 1983, Libro IV)

D.F.L. 2 of the Ministry of Finance, 1998 (D.F.L. 2 del Ministerio de Hacienda, 1998)

Cross-Border Trade in Services

Only Chilean natural persons may act as customs brokers (Despachadores de Aduana) or agents (Agentes de Aduana).

Specialised Services

Private Armed Security Guards

CPC 873 Investigation and security services

National Treatment (Article 9.3)

Central

Decree 1.773 of the Ministry of Interior, Official Gazette, November 14, 1994 (Decreto 1.773 del Ministerio del Interior, Diario Oficial, noviembre 14, 1994)

Cross-Border Trade in Services

Only Chilean nationals may provide services as private armed security guards.

Business Services

Research Services

CPC 851 Research and experimental development services on natural sciences and engineering

CPC 853 Interdisciplinary research and experimental development services

CPC 882 Services incidental to fishing

National Treatment (Article 9.3)

Central

Supreme Decree 711 of the Ministry of National Defence, Official Gazette, October 15, 1975 (Decreto Supremo 711 del Ministerio de Defensa Nacional, Diario Oficial, octubre 15, 1975)

Cross-Border Trade in Services

Foreign natural and juridical persons intending to conduct research in the Chilean 200-mile maritime zone shall be required to submit a request six months in advance to the Chilean Army Hydrographic Institute (Instituto Hidrográfico de la Armada de Chile) and shall comply with the requirements established in the corresponding regulation.

Business Services

Research Services

CPC 851 Research and experimental development services on natural sciences and engineering

CPC 853 Interdisciplinary research and experimental development services

CPC 8675 Engineering related scientific and technical consulting services

National Treatment (Article 9.3)

Central

D.F.L. 11 of the Ministry of Economic Affairs, Development and Reconstruction, Official Gazette, December 5, 1968 (D.F.L. 11 del Ministerio de Economía, Fomento y Reconstrucción, Diario Oficial, diciembre 5, 1968)

Decree 559 of the Ministry of Foreign Affairs, Official Gazette, January 24, 1968 (Decreto 559 del Ministerio de Relaciones Exteriores, Diario Oficial, enero 24, 1968)

D.F.L. 83 of the Ministry of Foreign Affairs, Official Gazette, March 27, 1979 (D.F.L. 83 del Ministerio de Relaciones Exteriores, Diario Oficial, marzo 27, 1979)

Cross-Border Trade in Services

Natural persons representing foreign juridical persons, or natural persons residing abroad, intending to perform explorations for work of a scientific or technical nature, or mountain climbing, in areas that are adjacent to Chilean borders shall apply for the appropriate authorisation through a Chilean consul in the country of domicile of the natural person. The Chilean consul shall then send such application directly to the National Directorate of Borders and Frontiers of the State (Dirección Nacional de Fronteras y Límites del Estado). The Directorate may order that one or more Chilean natural persons working in the appropriate related activities shall join the explorations in order to become acquainted with the studies to be undertaken.

The Operations Department of the National Directorate of Borders and Frontiers of the State (Departamento de Operaciones de la Dirección Nacional de Fronteras y Límites del Estado) shall decide and announce whether it authorises or rejects geographic or scientific explorations to be carried out by foreign juridical or natural persons in Chile. The National Directorate of Borders and Frontiers of the State shall authorise and will supervise all explorations involving work of a scientific or technical nature, or mountain climbing, that foreign juridical persons or natural persons residing abroad intend to carry out in areas adjacent to Chilean borders.

Business Services

Research in Social Sciences

CPC 86751 Geological, geophysical and other scientific prospecting services

National Treatment (Article 9.3)

Central

Law 17.288, Official Gazette, February 4, 1970, Title V (Ley 17.288, Diario Oficial, febrero 4, 1970, Título V)

Supreme Decree 484 of the Ministry of Education, Official Gazette, April 2, 1991 (Decreto Supremo 484 del Ministerio de Educación, Diario Oficial, abril 2, 1991)

Cross-Border Trade in Services

Foreign juridical or foreign natural persons intending to perform excavations, surveys, probing and/or collect anthropological, archeological or paleontological material must apply for a permit from the National Monuments Council (Consejo de Monumentos Nacionales). In order to obtain the permit, the person in charge of the research must be engaged by a reliable foreign scientific institution and must be working in collaboration with a Chilean governmental scientific institution or a Chilean university.

The aforementioned permit can be granted to (1) Chilean researchers having the pertinent scientific background in archeology, anthropology or paleontology, duly certified as appropriate, and also having a research project and due institutional sponsorship; and (2) foreign researchers, provided that they are engaged by a reliable scientific institution and that they work in collaboration with a Chilean governmental scientific institution or a Chilean university. Museum directors or curators acknowledged by the National Monuments Council (Consejo de Monumentos Nacionales), professional archeologists, anthropologists or paleontologists, as appropriate, and the members of the Chilean Society of Archeology (Sociedad Chilena de Arqueología) shall be authorised to perform salvage-related works. Salvage-related works involve the urgent recovery of data or archeological, anthropological or paleontological artifacts or species threatened by imminent loss.

Business Services

Printing, Publishing and Other Related Industries

National Treatment (Articles 9.3 and 10.3)

Most-Favoured-Nation Treatment (Articles 9.4 and 10.4)

Senior Management and Boards of Directors (Article 10.8)

Local Presence (Article 9.6)

Central

Law 19.733, Official Gazette, June 4, 2001, Law on Liberties of Opinion and Information and the Exercise of Journalism, Titles I & III (Ley 19.733, Diario Oficial, junio 4, 2001, Ley sobre las Libertades de Opinión e Información y Ejercicio del Periodismo, Títulos I y III)

Investment and Cross-Border Trade in Services

The owner of a social communication medium such as newspapers, magazines or regularly published texts whose publishing address is located in Chile, or a national news agency, shall in the case of a natural person have a duly established domicile in Chile and, in the case of a juridical person, shall be constituted with domicile in Chile or have an agency authorised to operate within the national territory. Only Chilean nationals may be president, administrators or legal representatives of the juridical person. The director legally responsible and the person who replaces him or her must be Chilean with domicile and residence in Chile.

Professional Services

Professional, Technical and Specialised Services

CPC 86211 Financial auditing services

National Treatment (Article 9.3)

Local Presence (Article 9.6)

Central

Law 18.046, Official Gazette, October 22, 1981, Corporations Law, Title V (Ley 18.046, Diario Oficial, octubre 22, 1981, Ley de Sociedades Anónimas, Título V)

Supreme Decree 587 of the Ministry of Finance, Official Gazette, November 13, 1982, Corporations Act (Decreto Supremo 587 del Ministerio de Hacienda, Diario Oficial, noviembre 13, 1982, Reglamento de Sociedades Anónimas)

Decree Law 1.097, Official Gazette, July 25, 1975, Titles I, II, III and IV (Decreto Ley 1.097, Diario Oficial, julio 25, 1975, Títulos I, II, III y IV)

Decree Law 3.538, Official Gazette, December 23, 1980, Titles I, II, III and IV (Decreto Ley 3.538, Diario Oficial, diciembre 23, 1980, Títulos I, II, III y IV) Circular 2.714, October 6, 1992; Circular 1, January 17, 1989; Chapter 19 Updated Collection, Superintendency of Banks and Financial Institutions Norms on External Auditors (Circular 2.714, octubre 6,1992; Circular 1, enero 17, 1989; Capítulo 19 de la Recopilación Actualizada de Normas de la Superintendencia de Bancos e Instituciones Financieras sobre auditores externos)

Circulars 327, June 29, 1983 and 350, October 21, 1983, Superintendency of Stock Corporations and Insurance Companies (Circulares 327, junio 29, 1983 y 350, octubre 21, 1983, de la Superintendencia de Valores y Seguros)

Cross-Border Trade in Services

External auditors of financial institutions must be registered in the Registry of External Auditors kept by the Superintendency of Banks and Financial Institutions (Superintendencia de Bancos e Instituciones Financieras) and the Superintendency of Stock Corporations and Insurance Companies (Superintendencia de Valores y Seguros). Only firms legally incorporated in Chile as partnerships (sociedades de personas) or associations (asociaciones) and whose main line of business is auditing services may be inscribed in the Registry.

Professional Services

Legal Services

CPC 861 Legal services

National Treatment (Article 9.3)

Most-Favoured-Nation Treatment (Article 9.4)

Local Presence (Article 9.6)

Central

Tribunals Organic Code, Title XV (Código Orgánico de Tribunales, Título XV)

Decree 110 of the Ministry of Justice, Official Gazette, March 20, 1979 (Decreto 110 del Ministerio de Justicia, Diario Oficial, marzo 20, 1979)

Law 18.120, Official Gazette, May 18, 1982 (Ley 18.120, Diario Oficial, mayo 18, 1982)

Agreement on Mutual Recognition of Examinations and Professional Degrees between Chile and Ecuador, Official Gazette, July 16, 1937 (Convenio sobre mutuo reconocimiento de exámenes y de títulos profesionales entre Chile y Ecuador)

Cross-Border Trade in Services

Only Chilean and foreign nationals with residence in Chile, who have completed the totality of their legal studies in the country, shall be authorised to practice as lawyers (abogados). This paragraph shall be understood in accordance with Chile’s obligations under any other international treaty.

Only lawyers (abogados) duly qualified to practise law shall be authorised to plead a case in Chilean courts and to file the first legal action or claim of each party.

The following documents, among others, shall be drawn up solely by lawyers (abogados): drafting of articles of incorporation and amendments thereto; mutual termination of obligations or liquidation of corporations; liquidation of community property between spouses (sociedad conyugal); distribution of property; articles of incorporation of juridical persons, associations, water canal members (asociaciones de canalistas), and cooperative associations (cooperativas); agreements governing financial transactions; corporate bond issuance agreements; and sponsoring applications for legal representation made by corporations and foundations.

Chile has a bilateral agreement with Ecuador, whereby Ecuadorian citizens holding a lawyers degree granted by a University in Ecuador are admitted to practise as lawyers (abogados) in Chile.

None of these measures apply to foreign legal consultants who practise or advise on international law or Australian law.

Professional, Technical and Specialised Services

Auxiliary Services in the Administration of Justice

CPC 861 Legal services

National Treatment (Article 9.3)

Local Presence (Article 9.6)

Central

Tribunals Organic Code, Titles XI and XII (Código Orgánico de Tribunales, Títulos XI y XII)

Real State Custodian Registry Act, Titles I, II and III (Reglamento del Registro Conservador de Bienes Raíces, Títulos I, II y III)

Law 18.118, Official Gazette, May 22, 1982, Title I (Ley 18.118, Diario Oficial, mayo 22, 1982, Título I)

Decree 197 of the Ministry of Economic Affairs, Development and Reconstruction, Official Gazette, August 8, 1985 (Decreto 197 del Ministerio de Economía, Fomento y Reconstrucción, Diario Oficial, agosto 8, 1985)

Law 18.175, Official Gazette, October 28, 1982, Title III (Ley 18.175, Diario Oficial, octubre 28, 1982, Título III)

Cross-Border Trade in Services

Justice ancillaries (auxiliares de justicia) must have their residence in the same city or place where the court house for which they render services is domiciled.

Public defenders (defensores públicos), public notaries (notarios públicos), and custodians (conservadores) shall be Chilean natural persons and fulfill the same requirements needed to become a judge.

Archivists (archiveros) and arbitrators at law (arbitros de derecho) must be lawyers (abogados) and, therefore, must be Chilean or foreign nationals with residence in Chile who have completed the totality of their legal studies in the country. Australian lawyers may assist in arbitration when dealing with Australian and international law and the private parties request it.

Only Chilean natural persons with the right to vote, and foreign natural persons with permanent residence and the right to vote, can act as process servers (receptores judiciales) and superior court attorneys (procuradores del número).

Only Chilean natural persons, foreign natural persons with permanent residence in Chile or Chilean juridical persons may be auctioneers (martilleros públicos).

Receivers in bankruptcy (síndicos de quiebra) must have a professional or technical degree granted by a university or a professional or technical institute recognised by Chile. Receivers in bankruptcy must have at least three years of experience in the commercial, economic or juridical field.

Transportation

Air Transportation

CPC 734 Rental services of aircraft with operator

CPC 7469 Other supporting services for air transport

National Treatment (Articles 9.3 and 10.3)

Most-Favoured-Nation Treatment (Articles 9.4 and 10.4)

Senior Management and Boards of Directors (Article 10.8)

Local Presence (Article 9.6)

Central

Law 18.916, Official Gazette, February 8, 1990, Code of Aeronautics, Preliminary Title and Titles II and III(Ley 18.916, Diario Oficial, febrero 8, 1990, CódigoAeronáutico, Títulos Preliminar, II y III)

Decree Law 2.564, Official Gazette, June 22, 1979, Commercial Aviation Norms (Decreto Ley 2.564, Diario Oficial, junio 22, 1979, Normas sobre Aviación Comercial)

Supreme Decree 624 of the Ministry of National Defence, Official Gazette, January 5, 1995 (Decreto Supremo 624 del Ministerio de Defensa Nacional, Diario Oficial, enero 5, 1995)

Law 16.752, Official Gazette, February 17, 1968, Title II (Ley 16.752, Diario Oficial, febrero 17, 1968, Título II)

Decree 34 of the Ministry of National Defence, Official Gazette, February 10, 1968 (Decreto 34 del Ministerio de Defensa Nacional, Diario Oficial, febrero 10, 1968)

Supreme Decree 102 of the Ministry of Transport and Telecommunications, Official Gazette, June 17, 1981 (Decreto Supremo 102 del Ministerio de Transportes y Telecomunicaciones, Diario Oficial, junio 17, 1981)

Supreme Decree 172 of the Ministry of National Defence, Official Gazette, March 5, 1974 (Decreto Supremo 172 del Ministerio de Defensa Nacional, Diario Oficial, marzo 5, 1974)

Supreme Decree 37 of the Ministry of National Defence, Official Gazette, December 10, 1991 (Decreto Supremo 37 del Ministerio de Defensa Nacional, Diario Oficial, diciembre 10, 1991)

Decree 234 of the Ministry of National Defence, Official Gazette, June 19, 1971 (Decreto 234 del Ministerio de Defensa Nacional, Diario Oficial, junio 19, 1971)

Investment and Cross-Border Trade in Services

Only a Chilean natural or juridical person may register an aircraft in Chile. Such juridical person must be constituted in Chile with principal domicile and real and effective seat in Chile. In addition, a majority of its ownership must be held by Chilean natural or juridical persons, which in turn must comply with the aforementioned requisites.

The president, manager, majority of directors and/or administrators of the juridical person must be Chilean natural persons.

A foreign registered private aircraft engaged in non-commercial activities may not remain in Chile more than 30 days from its date of entry into Chile, unless authorised by the General Directorate for Civil Aeronautics (Dirección General de Aeronáutica Civil). For greater certainty, this measure shall not apply to specialty air services as defined in Article 9.1(l) (Definitions, Cross-Border Trade in Services Chapter), except for glider towing and parachute jumping.

In order to work as crew members on aircraft used by a Chilean aviation company, foreign aviation personnel shall be required first to obtain a Chilean licence with the appropriate permits enabling them to discharge the pertinent duties.

Foreign aviation personnel shall be allowed to work in that capacity in Chile provided that Chilean civil aviation authorities validate the licence or authorisation granted by a foreign country. In the absence of an international agreement regulating such validation, the licence or authorisation shall be granted under conditions of reciprocity. In that case, proof shall be submitted showing that the licences or authorisations were issued or validated by the pertinent authorities in the country where the aircraft is registered, that the documents are in force, and that the requirements for issuing or validating such licences and authorisations meet or exceed the standards required in Chile for analogous cases.

Air transportation services may be provided by Chilean or foreign companies subject to the condition that, along the routes in which they operate, foreigners grant similar rights to Chilean aviation companies when so requested. The Civil Aviation Board (Junta de Aeronáutica Civil), by means of a substantiated resolution (resolución fundada), may terminate, suspend or limit domestic traffic services (cabotage) or any other class of commercial aviation services carried out solely in Chilean territory by foreign companies or aircraft if in their country of origin the right to equal treatment for Chilean companies and aircraft is denied.

Foreign civil aircraft not engaging in commercial transport activities or non-scheduled commercial air transport intending to enter Chilean territory, including its territorial waters, to fly over Chile, and to make stop-overs for non-commercial purposes, shall be required to notify the General Directorate for Civil Aeronautics at least 24 hours in advance. Commercial traffic aircraft not operating on a regular basis shall not be allowed to carry passengers, cargo or mail in Chilean territory without prior authorisation by the Civil Aviation Board (Junta de Aeronáutica Civil).

Transportation

Water Transport Services and Shipping

CPC 721 Transport services by sea–going vessels

CPC 722 Transport services by non–sea–going vessels

National Treatment (Articles 9.3 and 10.3)

Most-Favoured-Nation Treatment (Articles 9.4 and 10.4)

Senior Management and Boards of Directors (Article 10.8)

Local Presence (Article 9.6)

Central

Decree Law 3.059, Official Gazette, December 22,1979, Merchant Fleet Promotion Law, Titles I and II (Decreto Ley 3.059, Diario Oficial, diciembre 22, 1979, Ley de Fomento a la Marina Mercante, Títulos I y II)

Supreme Decree 24, Official Gazette, March 10, 1986, Act of Decree Law 3.059, Titles I and II (Decreto Supremo 24, Diario Oficial, marzo 10, 1986, Reglamento del Decreto Ley 3.059, Títulos I y II)

Decree Law 2.222, Official Gazette, May 31, 1978, Navigation Law, Titles I, II, III, IV and V (Decreto Ley 2.222, Diario Oficial, mayo 31, 1978, Ley de Navegación, Títulos I, II, III, IV y V)

Supreme Decree 153, Official Gazette, March 11, 1966, Approves the Sea People, Fluvial and Lacustrine Personnel Registration General Act (Decreto Supremo 153, Diario Oficial, marzo 11, 1966, Aprueba el Reglamento General de Matrícula del Personal de Gente de Mar, Fluvial y Lacustre)

Code of Commerce, Book III, Titles I, IV and V (Código de Comercio, Libro III, Títulos I, IV y V)

Law 19.420, Official Gazette, October 23, 1995, Establishes incentives for the economic development of the Provinces of Arica and Parinacota, and modifies the legal bodies indicated therein, Title Various Provisions (Ley 19.420, Diario Oficial, octubre 23, 1995, Establece incentivos para el desarrollo económico de las provincias de Arica y Parinacota y modifica cuerpos legales que indica, Título Disposiciones Varias)

Investment and Cross-Border Trade in Services

Only a Chilean natural or juridical person may register a vessel in Chile. Such juridical person must be constituted with principal domicile and real and effective seat in Chile. The president, manager and majority of the directors or administrators must be Chilean natural persons. In addition, more than 50 per cent of its capital must be held by Chilean natural or juridical persons. For these purposes, a juridical person with ownership participation in another juridical person that owns a vessel has to comply with all the aforementioned requisites.

A joint ownership (comunidad) may register a vessel if (1) the majority of the joint ownership is Chilean with domicile and residency in Chile; (2) the administrators are Chileans; and (3) the majority of the rights of the joint ownership belong to a Chilean natural or juridical person. For these purposes, a juridical person with ownership participation in a joint ownership (comunidad) that owns a vessel has to comply with all the aforementioned requisites to be considered Chilean.

Special vessels owned by foreign natural or juridical persons domiciled in Chile may under certain conditions be registered in the country. For these purposes, a special vessel does not include a fishing vessel. Foreign natural or juridical persons must meet the following conditions: (1) domicile in Chile; (2) principal head office in Chile; or (3) undertaking a profession or commercial activity in a permanent way in Chile. The maritime authority may, for reasons of national security, impose certain special restrictions on the operation of these vessels.

The maritime authority may provide better treatment based on the principle of reciprocity.

Foreign vessels shall be required to use pilotage, anchoring and harbour pilotage services when the maritime authorities so require. In tugging activities or other maneouvres performed in Chilean ports, only tugboats flying the Chilean flag shall be used.

Captains shall be required to be Chilean nationals and to be acknowledged as such by the pertinent authorities. Officers on Chilean vessels must be Chilean natural persons registered in the Officers’ Registry (Registro de oficiales). Crewmembers of a Chilean vessel must be Chilean, have the permit granted by the Maritime Authority (Autoridad Marítima) and be registered in the respective Registry. Professional titles and licences granted by a foreign country shall be considered valid for the discharge of officers' duties on national vessels pursuant to a substantiated resolution (resolución fundada) issued by the Director of the Maritime Authority.

Ship captains (patrón de nave) shall be Chilean nationals. A ship captain is a natural person who, pursuant to the corresponding title awarded by the Director of the Maritime Authority, is empowered to exercise command on smaller vessels and on certain special larger vessels.

Only Chilean nationals, or foreigners with domicile in Chile, shall be authorised to act as fishing boat captains (patrones de Pesca), machinists (mecánicos-motoristas), machine operators (motoristas), sea-faring fishermen (marineros pescadores), small-scale fishermen (pescadores), industrial or maritime trade technical employees or workers, and industrial and general ship service crews on fishing factories or fishing boats when so requested by ship operators (armadores) in order to initiate such work.

In order to fly the national flag, the ship captain (patrón de nave), officers and crew must be Chilean nationals. Nevertheless, the General Directorate for the Maritime Territory and Merchant Fleet (Dirección General del Territorio Marítimo y de Marina Mercante), on the basis of a substantiated resolution (resolución fundada), may authorise the hiring of foreign personnel, on a temporary basis if essential, with the exception of the captain, who, at all times, must be a Chilean national.

Only a Chilean natural or juridical person shall be authorised to work in Chile as a multimodal operator.

Cabotage shall be reserved for Chilean vessels. Cabotage shall include the ocean, river or lake shipping of passengers and cargo between different points of the national territory and between such points and naval artifacts installed in territorial waters or in the exclusive economic zone.

Foreign merchant vessels may be able to participate in cabotage when cargo volumes exceed 900 tons, following a public tender called by the user with due anticipation. When the cargo volumes involved are equal to or less than 900 tons, and no vessels flying the Chilean flag are available, the Maritime Authority shall authorise embarking such cargo on foreign merchant vessels. The reservation of coastal trade to Chilean vessels shall not apply in the event of cargo coming from or destined for ports located in the Province of Arica (Provincia de Arica).

In the event that Chile should adopt