Article
22.1:
General Exceptions
1. For the
purposes of Chapters 3 to 7 (National Treatment and Market
Access for Goods, Rules of Origin, Customs Administration,
Sanitary and Phytosanitary Measures, and Technical Regulations,
Standards and Conformity Assessment Procedures), GATT 1994
Article XX and its interpretative notes are incorporated into
and made part of this Agreement, mutatis mutandis.
The Parties understand that the measures referred to in GATT
1994 Article XX(b) include environmental measures necessary to
protect human, animal, or plant life or health, and that GATT
1994 Article XX(g) applies to measures relating to the
conservation of living and nonliving exhaustible natural
resources.
2. For the
purposes of Chapters 9, 11 and 16 (Cross-Border Trade in
Services, Telecommunications and Electronic
Commerce22-[60]), GATS Article XIV (including its footnotes) is
incorporated into and made part of this Agreement, mutatis
mutandis. The Parties understand that the measures
referred to in GATS Article XIV(b) include environmental
measures necessary to protect human, animal, or plant life or
health.
3. Nothing
in this Agreement shall be construed to prevent a Party from
taking action authorised by the Dispute Settlement Body of the
WTO. A Party taking such action shall inform the Joint
FTA Committee to the fullest extent possible of measures taken
and of their termination.
Article
22.2:
Security Exceptions
1. Nothing
in this Agreement shall be construed:
(a) to require a Party to furnish any information the disclosure of which it considers contrary to its essential security interests;
(b) to prevent a Party from taking any action which it considers necessary for the protection of its essential security interests:
(i) relating to fissionable and fusionable materials or the materials from which they are derived;
(ii) relating to the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials, or relating to the supply of services, as carried on directly or indirectly for the purpose of supplying or provisioning a military establishment; or
(iii) taken in time of war or other emergency in international relations; or
(c) to prevent a Party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.
2. A Party
taking action under paragraphs 1(b) and (c) shall inform the
Joint FTA Committee to the fullest extent possible of measures
taken and of their termination.
Article
22.3:
Taxation
1. Except as
set out in this Article, nothing in this Agreement shall apply
to taxation measures.
2. Nothing
in this Agreement shall affect the rights and obligations of
either Party under any tax treaty. In the event of any
inconsistency between this Agreement and any such treaty, that
treaty shall prevail to the extent of the inconsistency.
In the case of a tax treaty between the Parties, the competent
authorities under that treaty shall have sole responsibility
for determining whether any inconsistency exists between this
Agreement and that treaty.
3.
Notwithstanding paragraph 2, the following Articles shall apply
to taxation measures:
(a) Article 3.3 (National Treatment – National Treatment and Market Access for Goods Chapter), and such other provisions of this Agreement as are necessary to give effect to that Article, to the same extent as does GATT 1994 Article III; and
(b) Article 3.11 (Export Taxes – National Treatment and Market Access for Goods Chapter).
4. Subject
to paragraph 2, the following Articles shall apply to taxation
measures:
(a) Article 9.3 (National Treatment – Cross-Border Trade in Services Chapter) and Article 12.3 (National Treatment – Financial Services Chapter), only where the taxation measure is a direct tax that relates to the purchase or consumption of particular services, except that nothing in this sub-paragraph shall prevent a Party from conditioning the receipt or continued receipt of an advantage relating to the purchase or consumption of particular services on requirements to provide the service in its territory;
(b) Article 9.3 (National Treatment – Cross-Border Trade in Services Chapter), Article 9.4 (Most-Favoured-Nation Treatment – Cross-Border Trade in Services Chapter), Article 10.3 (National Treatment – Investment Chapter), Article 10.4 (Most-Favoured-Nation Treatment – Investment Chapter), Article 12.3 (National Treatment – Financial Services Chapter), and Article 12.4 (Most-Favoured-Nation Treatment – Financial Services Chapter), only where the taxation measure is an indirect tax; and
(c) Without prejudice to the rights and obligations of the Parties under paragraph 3, Articles 10.7.2, 10.7.3 and 10.7.4 (Performance Requirements – Investment Chapter);
except that nothing in those Articles shall apply:
(d) any most-favoured-nation obligation in this Agreement with respect to an advantage accorded by a Party pursuant to a tax treaty;
(e) to a non-conforming provision of any existing taxation measure;
(f) to the continuation or prompt renewal of a non-conforming provision of any existing taxation measure;
(g) to an amendment to a non-conforming provision of any existing tax measure to the extent that the amendment does not decrease its conformity, at the time of the amendment, with any of those Articles22-[61];
(h) to the adoption of any non-conforming provision of a taxation measure which is substantially similar to an existing non-conforming provision of the other Party;
(i) to the adoption or enforcement of any taxation measure aimed at ensuring the equitable or effective imposition or collection of taxes; or
(j) to a provision that conditions the receipt, or continued receipt of an advantage relating to the contributions to, or income of, a pension trust, superannuation fund or other arrangement to provide pension, superannuation or similar benefits on a requirement that the Party maintains continuous jurisdiction, regulation or supervision over such trust, fund or other arrangement.
5. Article
10.11 (Expropriation and Compensation – Investment
Chapter), Article 10.16 (Submission of a Claim to Arbitration
– Investment Chapter) and Chapter 21 (Dispute Settlement)
shall apply to a taxation measure alleged to be an
expropriation. However, no investor may invoke Article
10.11 (Expropriation and Compensation – Investment
Chapter) as the basis of a claim where it has been determined
pursuant to this paragraph that the measure is not an
expropriation. An investor that seeks to invoke Article
10.11 (Expropriation and Compensation – Investment
Chapter) with respect to a taxation measure must first refer to
the designated authorities at the time that it gives its notice
of intent under Article 10.16 (Submission of a Claim to
Arbitration – Investment Chapter) the issue of whether
that taxation measure involves an expropriation. If the
designated authorities do not agree to consider the issue or,
having agreed to consider it, fail to agree that the measure is
not an expropriation within a period of six months of such
referral, the investor may submit its claim to arbitration
under Article 10.16 (Submission of a Claim to Arbitration
– Investment Chapter).
6. For the purposes of this Article,"taxation measure"
means any measure relating to direct or indirect taxes, but
does not include:
(i) a customs duty; or
(ii) the measures listed in exceptions (iii) and (iv) of the definition of customs duty in Article 2.1(d).
7. For the
purposes of paragraph 4, "designated authority"
means:
(i) in the case of Australia, the Secretary to the Treasury or its successor, or an authorised representative of the Secretary; and
(ii) in the case of Chile, the Director del Servicio de Impuestos Internos, Ministerio de Hacienda, or an authorised representative of the Ministro de Hacienda.
Article
22.4:
Restrictions to Safeguard the Balance of Payments
1. Where a
Party is in serious balance of payments and external financial
difficulties, or under threat thereof, it may adopt or maintain
restrictive measures with regard to trade in goods and in
services and with regard to payments and capital movements,
including those related to direct investment.
2. The
Parties shall endeavour to avoid the application of the
restrictive measures referred to in paragraph 1.
3. Any
restrictive measure adopted or maintained under this Article
shall be non-discriminatory and of limited duration and shall
not go beyond what is necessary to remedy the balance of
payments and external financial situation. They shall be
in accordance with the conditions established in the WTO
Agreement and consistent with the Articles of Agreement of the
International Monetary Fund, as applicable.
4. The Party
maintaining or having adopted restrictive measures, or any
changes thereto, shall promptly notify them to the other Party
and present, as soon as possible, a time schedule for their
removal.
5. The Party
applying restrictive measures shall consult promptly with the
other Party within the Joint FTA Committee. Such
consultations shall assess the balance of payments situation of
the Party concerned and the restrictions adopted or maintained
under this Article, taking into account, inter alia,
such factors as:
(a) the nature and extent of the balance of payments and the external financial difficulties;
(b) the external economic and trading environment of the consulting Party; and
(c) alternative corrective measures which may be available.
The consultations shall address the compliance of any
restrictive measures with paragraphs 3 and 4. All
findings of statistical and other facts presented by the
International Monetary Fund relating to foreign exchange,
monetary reserves and balance of payments shall be accepted and
conclusions shall be based on the assessment by the Fund of the
balance of payments and external financial situation of the
consulting Party.
Article
22.5:
Disclosure of Information
1. Each
Party shall, in accordance with its laws and regulations,
maintain the confidentiality of information provided in
confidence by the other Party pursuant to this Agreement.
2. Nothing
in this Agreement shall be construed as requiring a Party to
furnish or allow access to confidential information the
disclosure of which would impede law enforcement or otherwise
be contrary to the public interest22-[62]or which would
prejudice the legitimate commercial interests of particular
enterprises, public or private.
22-[60]This Article is without prejudice to
whether electronic transmissions should be classified as
goods or services.
22-[61] For greater certainty, such an
amendment may include the adoption of an excise tax on
insurance premiums in place of an income tax on insurance
premiums.
22-[62]For the purposes of this paragraph
the public interest includes, for Australia, compliance with
the Privacy Act (Cth) 1988.