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- PART NINE
- OTHER PROVISIONS
-
- Chapter Twenty-One
-
- Exceptions
-
-
-
- Article 2101: General Exceptions
-
- 1. For purposes of:
-
- (a) Part Two (Trade in Goods), except to the extent that a
- provision of that Part applies to services or
- investment, and
-
- (b) Part Three (Technical Barriers to Trade), except to the
- extent that a provision of that Part applies to
- services,
-
- GATT Article XX and its interpretative notes, or any equivalent
- provision of a successor agreement to which all Parties are
- party, are incorporated into and made part of this Agreement.
- The Parties understand that the measures referred to in GATT
- Article XX(b) include environmental measures necessary to protect
- human, animal or plant life or health, and that GATT Article
- XX(g) applies to measures relating to the conservation of living
- and non-living exhaustible natural resources.
-
- 2. Provided that such measures are not applied in a manner that
- would constitute a means of arbitrary or unjustifiable
- discrimination between countries where the same conditions
- prevail or a disguised restriction on trade between the Parties,
- nothing in:
-
- (a) Part Two (Trade in Goods), to the extent that a
- provision of that Part applies to services,
-
- (b) Part Three (Technical Barriers to Trade), to the extent
- that a provision of that Part applies to services,
-
- (c) Chapter Twelve (Cross-Border Trade in Services), and
-
- (d) Chapter Thirteen (Telecommunications),
-
- shall be construed to prevent the adoption or enforcement by any
- Party of measures necessary to secure compliance with laws or
- regulations that are not inconsistent with the provisions of this
- Agreement, including those relating to health and safety and
- consumer protection, or
-
- 3. Provided that such measures are not applied in an arbitrary
- or unjustifiable manner, or do not constitute a disguised
- restriction on international trade or investment, nothing in
- Article 1106(1)(b) or (c) or (3)(a) or (b) (Performance
- Requirements) shall be construed to prevent any Party from
- adopting or maintaining measures, including environmental
- measures:
-
- (a) necessary to secure compliance with laws and
- regulations that are not inconsistent with the
- provisions of this Agreement;
-
- (b) necessary to protect human, animal or plant life or
- health; or
-
- (c) necessary for the conservation of living or non-living
- exhaustible natural resources.
-
-
- Article 2102: National Security
-
- 1. Subject to Articles 607 (Energy) and 1018 (Government
- Procurement), nothing in this Agreement shall be construed:
-
- (a) to require any Party to furnish or allow access to any
- information the disclosure of which it determines to be
- contrary to its essential security interests;
-
- (b) to prevent any Party from taking any actions that it
- considers necessary for the protection of its essential
- security interests
-
- (i) relating to the traffic in arms, ammunition and
- implements of war and to such traffic and
- transactions in other goods, materials, services
- and technology undertaken directly or indirectly
- for the purpose of supplying a military or other
- security establishment,
-
- (ii) taken in time of war or other emergency in
- international relations, or
-
- (iii) relating to the implementation of national
- policies or international agreements
- respecting the non-proliferation of nuclear
- weapons or other nuclear explosive devices;
- or
-
- (c) to prevent any Party from taking action in pursuance of
- its obligations under the United Nations Charter for
- the maintenance of international peace and security.
-
-
- Article 2103: 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 any Party under any tax convention. In the event
- of any inconsistency between the provisions of this Agreement and
- any such convention, the provisions of that convention shall
- prevail to the extent of the inconsistency.
-
- 3. Notwithstanding paragraph 2:
-
- (a) Article 301 (Market Access - National Treatment) and
- such other provisions of this Agreement as are
- necessary to give effect to that Article shall apply to
- taxation measures to the same extent as does Article
- III of the GATT, and
-
- (b) Article 315 (Market Access - Export Taxes) and Article
- 604 (Energy - Export Taxes),
-
- shall apply to taxation measures.
-
- 4. Subject to paragraph 2:
-
- (a) Article 1202 (Cross-Border Trade in Services - National
- Treatment) and Article 1407 (Financial Services -
- National Treatment) shall apply to taxation measures on
- income, capital gains or on the taxable capital of
- corporations, and to those taxation measures set out in
- Annex 2103.4 that relate to the purchase or consumption
- of particular services, and
-
- (b) Articles 1102 and 1103 (Investment - National Treatment
- and MFN), Articles 1202 and 1203 (Cross-Border Trade in
- Services - National Treatment and MFN) and Articles
- 1407 and 1408 (Financial Services - National Treatment
- and MFN) and shall apply to all taxation measures,
- other than those on income, capital gains or on the
- taxable capital of corporations and those taxes listed
- in Annex 2103.4,
-
- except that nothing in those Articles shall apply
-
- (c) any most-favored-nation obligation with respect to an
- advantage accorded by a Party pursuant to a tax
- convention,
-
- (d) to a non-conforming provision of any existing taxation
- measure,
-
- (e) to the continuation or prompt renewal of a non-
- conforming provision of any existing taxation measure,
-
- (f) to an amendment to a non-conforming provision of any
- existing taxation measure to the extent that the
- amendment does not decrease its conformity, at the time
- of the amendment, with any of those Articles,
-
- (g) to any new taxation measure aimed at ensuring the
- equitable and effective imposition or collection of
- taxes and that does not arbitrarily discriminate
- between persons, goods or services of the Parties or
- arbitrarily nullify or impair benefits accorded under
- those Articles, in the sense of Annex 2004, or
-
- (h) to the measures set out in Annex 2103.4.
-
- 5. Subject to paragraph 2 and without prejudice to the rights
- and obligations of the Parties, Article 1106(3), (4), (5) and (6)
- (Performance Requirements) shall apply to taxation measures.
-
- 6. Article 1110 (Expropriation) shall apply to taxation
- measures except that no investor may invoke that Article as the
- basis for a claim under Article 1116 or 1117, where it has been
- determined pursuant to this paragraph that the measure is not an
- expropriation. The investor shall refer the issue of whether the
- measure is not an expropriation for a determination to the
- appropriate competent authorities set out in Annex 2104.6 at the
- time that it gives notice under Article 1119. If the competent
- 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 after such referral,
- the investor may submit its claim to arbitration under Article
- 1120.
-
-
- Article 2104: Balance of Payments
-
- 1. Nothing in this Agreement shall prevent a Party from
- adopting or maintaining measures that restrict international
- transactions or related international transfers and payments
- ("transfers") where the Party experiences serious balance of
- payments difficulties, or the threat thereof, and such
- restrictions are:
-
- (a) consistent with paragraphs 4 through 8 when imposed on
- cross-border trade in financial services; or
-
- (b) consistent with paragraphs 2 through 6 when imposed on
- any other transaction or transfer.
-
- 2. Restrictions imposed on transactions or transfers other than
- cross-border trade in financial services shall:
-
- (a) when imposed on payments for current international
- transactions, be consistent with Article VIII(3) of the
- Articles of Agreement of the International Monetary
- Fund ("IMF");
-
- (b) when imposed on international capital transactions, be
- consistent with Article VI of the Articles of Agreement
- of the IMF and imposed only in conjunction with
- measures imposed on current international transactions
- under paragraphs 2(a) and 4(a); and
-
- (c) when imposed on transfers covered by Article 1109
- (Investment - Transfers) and transfers related to trade
- in goods, be made in a freely usable currency at a
- market rate of exchange such that the payments and
- transfers are not substantially impeded.
-
- 3. No Party may adopt or maintain measures such as tariff
- surcharges, quotas or licenses under this Article.
-
- 4. As soon as practicable after imposing a restriction under
- this Article, the Party imposing the restriction shall:
-
- (a) submit any current account exchange restrictions to the
- IMF for review under Article VIII of the Articles of
- Agreement of the IMF; and
-
- (b) enter into good faith consultations with the IMF on
- economic adjustment measures to address the fundamental
- underlying economic problems causing the difficulties
- and receive endorsement of such measures by the IMF.
-
- 5. Each Party shall ensure that any measure that it adopts or
- maintains under this Article shall:
-
- (a) avoid unnecessary damage to the commercial, economic
- and financial interests of another Party;
-
- (b) not be more burdensome than necessary to deal with the
- balance of payments difficulties or threat thereof;
-
- (c) be temporary and be phased out progressively as the
- situation improves;
-
- (d) be consistent with any economic adjustment measures
- endorsed by the IMF under paragraph 4(b) and consistent
- with the Articles of Agreement of the IMF; and
-
- (e) be applied on a national treatment and
- most-favored-nation treatment basis.
-
- 6. A Party may adopt or maintain a measure under this Article
- that gives priority to services which are more essential to its
- economic program, provided that, except as specifically approved
- under an IMF-endorsed adjustment program in effect under
- paragraph 4, no such measure is imposed for the purpose of
- protecting a specific industry or sector.
-
- 7. A Party imposing a restriction on cross-border trade in
- financial services shall:
-
- (a) not impose more than one measure on any given
- transaction and its related transfer, except as
- specifically approved under an IMF-endorsed adjustment
- program;
-
- (b) promptly notify the other Parties; and
-
- (c) consult promptly with the other Parties to assess the
- balance of payments situation of the Party and the
- measures it has adopted, taking into account among
- other elements
-
- (i) the nature and extent of the balance of payments
- and external financial difficulties of the Party,
-
- (ii) the external economic and trading environment of
- the Party, and
-
- (iii) alternative corrective measures that may be
- available.
-
- 8. In consultations under paragraph 7(c), the Parties shall:
-
- (a) consider if measures adopted under this Article comply
- with paragraph 5, in particular subparagraph 5(c); and
-
- (b) accept all findings of statistical and other facts
- presented by the IMF relating to foreign exchange,
- monetary reserves and balance of payments, and shall
- base their conclusions on the assessment by the IMF of
- the balance of payments and external financial
- situation of the Party adopting the measures.
-
-
- Article 2105: Disclosure of Information
-
- Nothing in this Agreement shall be construed to require a
- Party to furnish or allow access to information the disclosure of
- which would impede law enforcement or would be contrary to laws
- protecting personal privacy.
-
-
- Article 2106: Cultural Industries
-
- Annex 2106 applies to cultural industries.
-
-
- Article 2107: Definitions
-
- For purposes of this Chapter:
-
- cultural industries means any person engaged in any of the
- following activities:
-
- (a) the publication, distribution, or sale of books,
- magazines, periodicals or newspapers in print or
- machine readable form but not including the sole
- activity of printing or typesetting any of the
- foregoing;
-
- (b) the production, distribution, sale or exhibition of
- film or video recordings;
-
- (c) the production, distribution, sale or exhibition of
- audio or video music recordings;
-
- (d) the publication, distribution or sale of music in print
- or machine readable form; or
-
- (e) radio communication in which the transmissions are
- intended for direct reception by the general public,
- and all radio, television and cable broadcasting
- undertakings and all satellite programming and
- broadcast network services;
-
- international capital transactions means "international capital
- transactions" as defined under the Articles of Agreement of the
- IMF;
-
- payments for current international transactions means "payments
- for current international transactions" as defined under the
- Articles of Agreement of the IMF;
-
- tax convention means a convention for the avoidance of double
- taxation or other international taxation agreement or
- arrangement; and
-
- taxes and taxation measures do not include:
-
- (a) a "customs duty" as defined in Article 319; or
-
- (b) the measures listed in exceptions (b), (c), (d) and (e)
- of that definition.
-
- =============================================================================
-
- ANNEX 2103.4
-
- Specific Taxation Measures
-
-
- 1. Article 2103(4)(a) (Taxation) shall apply to an asset tax
- under the Asset Tax Law ("Ley del Impuesto al Activo") of Mexico.
-
- 2. Article 2103(4)(a) and (b) shall not apply to any excise tax
- on insurance premiums adopted by Mexico to the extent that such
- tax would, if levied by Canada or the United States, be covered
- by Article 2103(4)(d), (e) or (f).
-
- =============================================================================
-
- ANNEX 2104.6
-
- Competent Authorities
-
-
- 1. The competent authority for Canada is the Assistant Deputy
- Minister for Tax Policy, Department of Finance.
-
- 2. The competent authority for Mexico is the Deputy Minister of
- Revenue of the Ministry of Finance and Public Credit.
- (Secretaria de Hacienda y Credito Publico)
-
- 3. The competent authority for the United States is the
- Assistant Secretary of the Treasury (Tax Policy), U.S. Department
- of the Treasury.
-
- =============================================================================
-
- ANNEX 2106
-
- Cultural Industries
-
-
- Notwithstanding any other provision of this Agreement, as
- between the United States and Canada, any measure adopted or
- maintained with respect to cultural industries, except as
- specifically provided in Article 302 (Market Access - Tariff
- Elimination), and any measure of equivalent commercial effect
- taken in response, shall be governed exclusively in accordance
- with the terms of the Canada - United States Free Trade
- Agreement. The rights and obligations between Canada and any
- other Party with respect to such measures shall be identical to
- those applying between Canada and the United States.
-