Chapter Twenty-One-- Exceptions

Chapter Twenty-One-- Exceptions

Article 21.1: General Exceptions

1. For purposes of Chapters Three through Seven (National Treatment and Market Access

for Goods, Rules of Origin and Origin Procedures, Customs Administration and Trade

Facilitation, Sanitary and Phytosanitary Measures, and Technical Barriers to Trade), Article XX

of the GATT 1994 and its interpretive notes are incorporated into and made part of this

Agreement, mutatis mutandis.  The Parties understand that the measures referred to in Article

XX(b) of the GATT 1994 include environmental measures necessary to protect human, animal,

or plant life or health, and that Article XX(g) of the GATT 1994 applies to measures relating to

the conservation of living and non-living exhaustible natural resources.

2. For purposes of Chapters Eleven, Thirteen, and Fourteen1 (Cross-Border Trade in

Services, Telecommunications, and Electronic Commerce), Article XIV of the GATS (including

its footnotes) is incorporated into and made part of this Agreement, mutatis mutandis.  The

Parties understand that the measures referred to in Article XIV(b) of the GATS include

environmental measures necessary to protect human, animal, or plant life or health.

Article 21.2: Essential Security 

 Nothing in this Agreement shall be construed:

(a) to require a Party to furnish or allow access to any information the disclosure of

which it determines to be contrary to its essential security interests; or 

(b) to preclude a Party from applying measures that it considers necessary for the

fulfillment of its obligations with respect to the maintenance or restoration of

international peace or security, or the protection of its own essential security

interests.

Article 21.3: 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 any Party under any

tax convention.  In the event of any inconsistency between this Agreement and any such

convention, that convention shall prevail to the extent of the inconsistency.  In the case of a tax

convention between two or more Parties, the competent authorities under that convention shall

                                                

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  This Article is without prejudice to whether digital products should be classified as goods or services.

 

 

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have sole responsibility for determining whether any inconsistency exists between this

Agreement and that convention. 

3. Notwithstanding paragraph 2:

(a) Article 3.2 (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 1994; and

(b) Article 3.10 (Export Taxes) shall apply to taxation measures.

4. Subject to paragraph 2:

(a) Article 11.2 (National Treatment) and Article 12.2 (National Treatment) shall

apply to taxation measures on income, capital gains, or on the taxable capital of

corporations that relate to the purchase or consumption of particular services,

except that nothing in this subparagraph 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; and

(b) Articles 10.3 (National Treatment) and 10.4 (Most-Favored-Nation Treatment),

Articles 11.2 (National Treatment) and 11.3 (Most-Favored-Nation Treatment)

and Articles 12.2 (National Treatment) and 12.3 (Most-Favored-Nation

Treatment) shall apply to all taxation measures, other than those on income,

capital gains, or on the taxable capital of corporations, taxes on estates,

inheritances, gifts, and generation-skipping transfers, 

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 any 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 the adoption or enforcement of any taxation measure aimed at ensuring the

equitable or effective imposition or collection of taxes (as permitted by Article

XIV(d) of the GATS); or

 

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(h) to a provision that conditions the receipt, or continued receipt, of an advantage

relating to the contributions to, or income of, pension trusts or pension plans on a

requirement that the Party maintain continuous jurisdiction over the pension trust

or pension plan.

5. Subject to paragraph 2 and without prejudice to the rights and obligations of the Parties

under paragraph 3, Article 10.9.2, 10.9.3, and 10.9.4 (Performance Requirements) shall apply to

taxation measures.

6. Article 10.7 (Expropriation and Compensation) and Article 10.16 (Submission of a Claim

to Arbitration) shall apply to a taxation measure alleged to be an expropriation or a breach of an

investment agreement or investment authorization.  However, no investor may invoke Article

10.7 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 10.7 with respect to a

taxation measure must first refer to the competent authorities of the Parties of the claimant and

the respondent set out in Annex 21.3 at the time that it gives its notice of intent under Article

10.16.2 the issue of whether that taxation measure involves an expropriation.  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 of such referral, the investor may

submit its claim to arbitration under Article 10.16.

Article 21.4: Balance of Payments Measures on Trade in Goods

Should a Party decide to impose measures for balance of payments purposes, it shall do

so only in accordance with that Party’s rights and obligations under the GATT 1994, including

the Declaration on Trade Measures Taken for Balance of Payments Purposes (1979 Declaration)

and the Understanding on the Balance of Payments Provisions of the GATT 1994 (BOP

Understanding).  In adopting such measures, the Party shall immediately consult with the other

Parties and shall not impair the relative benefits accorded to the other Parties under this

Agreement.2

 

Article 21.5: Disclosure of Information

Nothing in this Agreement shall be construed to require 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 interest, or which would prejudice the legitimate commercial interests

of particular enterprises, public or private.

 

Article 21.6: Definitions 

For purposes of this Chapter:

 

                                                

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  For greater certainty, this Article applies to balance of payments measures imposed on trade in goods.

 

 

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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; or

(b) the measures listed in exceptions (b) and (c) of the definition of customs duty.

 

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Annex 21.3

Competent Authorities

For purposes of this Chapter:

 

competent authorities means

(a) in the case of Costa Rica, the Viceministro de Hacienda; 

(b) in the case of the Dominican Republic, the Subsecretario de Estado de Finanzas;

(c) in the case of El Salvador, the Viceministro de Hacienda;

(d) in the case of Guatemala, the Viceministro de Finanzas Públicas;

(e) in the case of Honduras, the Subsecretario en el Despacho de Finanzas;

(f) in the case of Nicaragua, the Viceministro de Hacienda y Crédito Publico; and

(g) in the case of the United States, the Assistant Secretary of the Treasury (Tax

Policy), Department of the Treasury,

or their successors.