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Financial services in the Colombia-US context

Carlos Fradique-MéndezDaniel Rodríguez-Bravo

The US-Colombia Trade Promotion Agreement (CTPA) was signed on November 22 2006, by Deputy US Trade Representative John Veroneau and Colombian Minister of Trade, Industry, and Tourism Jorge Humberto Botero. Colombia's Congress approved the CTPA and a protocol of amendment in 2007.

Colombia's Constitutional Court completed its review in July 2008, and concluded that the Agreement conforms to Colombia's Constitution. The US Congress passed the CTPA in October 2011 with a vote of 262 to 167 in the House and 66 to 33 in the Senate.

The CTPA is divided into a preamble, 23 chapters and a number of annexes. Financial services regulation is primarily contained in chapter 12, in the understandings regarding financial services and the services measures document dated November 22 2006 and in Annex III regarding non-conforming measures for financial services.

Chapter 12 applies to measures adopted or maintained by a party relating to financial institutions of another party, to investors of another party – and investments of such investors in financial institutions in the party's territory – and to cross-border trade in financial services.

It does not apply, with some exceptions, to measures adopted or maintained by a party relating to activities or services forming part of a public retirement plan or statutory system of social security, or to activities or services conducted for the account or with the guarantee or using the financial resources of the party, including its public entities.

Under the CTPA, both banks and insurance companies of each of the parties will be permitted to establish branches in the other party's territory, although some significant caveats apply to both parties.

The cross-border trade in financial services or cross-border supply of financial services – defined by the CTPA as the supply of a financial service from the territory of one party into the territory of another party, in the territory of one party by a person of that party to a person of another party, or by a national of one party in the territory of another party – does not include the supply of a financial service in the territory of a party by an investment in that territory. Thus, it does not include establishing a branch in the territory of the party.

The cross-border supply of insurance and reinsurance services would be permitted to both parties regarding goods in international transit, maritime shipping, commercial aviation, space launching and freight (including satellites), with such insurance to cover any or all of the following: the goods being transported, the vehicles transporting the goods, and any liability arising therefrom.

The cross-border supply of banking and other financial services (excluding insurance) would be permitted to both parties with respect to the provision and transfer of financial information and financial data processing and related software and advisory and other auxiliary financial services excluding intermediation, relating to banking and other financial services.

The Colombian Congress, upon the government's initiative, passed Law 1328 of 2009 which incorporates the parties' agreements regarding both US financial institutions establishing branches in the Colombian territory and the cross-border supply of financial services by US financial institutions and insurance companies.

Carlos Fradique-Méndez and Daniel Rodríguez-Bravo

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