Common use of Investment Disputes In Financial Services Clause in Contracts

Investment Disputes In Financial Services. 1. Where an investor of a Party submits a claim under Section B (Investor-State Dispute Settlement) of Chapter 9 (Investment) against the other Party and the respondent invokes Article 11.10, on request of the respondent, the tribunal shall refer the matter in writing to the Committee for a decision. The tribunal may not proceed pending receipt of a decision or report under this Article. 2. In a referral pursuant to paragraph 1, the Committee shall decide the issue of whether and to what extent Article 11.10 is a valid defense to the claim of the investor. The Committee shall transmit a copy of its decision to the tribunal and to the Joint Committee. The decision shall be binding on the tribunal. 3. Where the Committee has not decided the issue within 60 days of the receipt of the referral under paragraph 1, the respondent or the Party of the claimant may request the establishment of an arbitral panel under Article 22.7 (Establishment of Panel). The panel shall be constituted in accordance with Article 11.18. The panel shall transmit its final report to the Committee and to the tribunal. The report shall be binding on the tribunal. 4. The Committee may decide that, for the purposes of a referral pursuant to paragraph 1, the financial services authorities of the relevant Parties shall make the decision described in paragraph 2 and transmit that decision to the tribunal and the Joint Committee. In that case, a request may be made under paragraph 3 if the relevant Parties 11-10 have not made the decision described in paragraph 2 within 60 days of their receipt of the referral under paragraph 1. 5. Where no request for the establishment of a panel pursuant to paragraph 3 has been made within 10 days of the expiration of the 60-day period referred to in paragraph 3, the tribunal may proceed to decide the matter. 6. For the purposes of this Article, tribunal means a tribunal established under Article 9.20 (Selection of Arbitrators). ARTICLE 11.20: DEFINITIONS For the purposes of this Chapter: cross- border financial service supplier of a Party means a person of a Party that is engaged in the business of supplying a financial service within the territory of the Party and that seeks to supply or supplies a financial service through the cross-border supply of such services; cross-border trade in financial services or cross-border supply of financial services means the supply of a financial service: (a) from the territory of a Party into the territory of the other Party; (b) in the territory of a Party by a person of that Party to a person of the other Party; or (c) by a national of a Party in the territory of the other Party, but does not include the supply of a financial service in the territory of a Party by an investment in that territory; financial institution means any financial intermediary or other enterprise that is authorized to do business and regulated or supervised as a financial institution under the law of the Party in whose territory it is located; financial institution of the other Party means a financial institution, including a branch, located in the territory of a Party that is controlled by persons of the other Party; financial service means any service of a financial nature. Financial services include all insurance and insurance-related services, and all banking and other financial services (excluding insurance), as well as services incidental or auxiliary to a service of a financial nature. Financial services include the following activities: Insurance and insurance- related services (a) direct insurance (including co-insurance): 11-11 (i) life, (ii) non-life; (b) reinsurance and retrocession; (c) insurance intermediation, such as brokerage and agency; and (d) services auxiliary to insurance, such as consultancy, actuarial, risk assessment, and claim settlement services; Banking and other financial services (excluding insurance) (e) acceptance of deposits and other repayable funds from the public; (f) lending of all types, including consumer credit, mortgage credit, factoring, and financing of commercial transactions; (g) financial leasing; (h) all payment and money transmission services, including credit, charge and debit cards, travelers checks, and bankers drafts; (i) guarantees and commitments; (j) trading for own account or for account of customers, whether on an exchange, in an over-the-counter market, or otherwise, the following: (i) money market instruments (including checks, bills, certificates of deposits); (ii) foreign exchange; (iii) derivative products including, but not limited to, futures and options; (iv) exchange rate and interest rate instruments, including products such as swaps, forward rate agreements; (v) transferable securities; (vi) other negotiable instruments and financial assets, including bullion; (k) participation in issues of all kinds of securities, including underwriting and placement as agent (whether publicly or privately) and provision of services related to such issues; 11-12 (l) money