A Comparative Guide to the Chile-United States Free Trade Agreement and the
Chapter Twenty-Four on final provisions of the Chile-U.S. FTA and Chapter Twenty-Two on final provisions of DR-CAFTA are similar in terms of basic structure except that DR-CAFTA contains additional Articles on reservations, accession, withdrawal, and a depositary.
The respective final provisions of the Chile-U.S. FTA and DR-CAFTA are also similar in terms of substantive content. Both Chapters specify that annexes, appendices and footnotes to the respective Agreement constitute an integral part thereof, make provision for amending the respective Agreement, and specify that the English and Spanish texts of the respective Agreement are equally authentic. Being an Agreement among more than two Parties, DR-CAFTA provides additionally for accession, withdrawal and a depositary.
Annexes, Appendices and Footnotes: both Chapters specify that annexes, appendices, and footnotes to the Agreement are an integral part of the respective Agreement (Chile-U.S. FTA Art.24.1 and DR-CAFTA Art.22.1).
Amendment of the FTA: both Chapters provide for the Parties to agree on any amendment of the respective Agreement (Chile-U.S. FTA Art.24.2 and DR-CAFTA Art.22.2). The Chile-U.S. FTA uses the term “modification or addition.” Paragraph 1 of Article 22.2 of DR-CAFTA provides that the English and Spanish texts of the amendment shall be deposited with the Depositary, which will provide a certified copy to each Party. When so agreed and approved in accordance with the applicable legal procedures of each Party, the amendment shall constitute an integral part of the respective Agreement. Additionally in paragraph 2 of Article 22.2, DR-CAFTA provides that the amendment shall take effect on the date on which all Parties have notified the Depositary in writing that they have approved the amendment or on such other date as the Parties may agree.
Amendment of the WTO Agreement: both Chapters provide that if any WTO provision that is incorporated into the respective Agreement is amended, the Parties shall consult on whether to amend the Agreement (Chile-U.S. FTA Art.24.3 and DR-CAFTA Art.22.3). Thus, notwithstanding that the original WTO provision is amended for purposes of the WTO Agreement, the provision in the FTA is not automatically amended in the respective FTA. The Parties to the FTA must go through the above-mentioned amendment procedures of the respective FTA to effect the amendment for purposes of the FTA.
Reservations: Article 22.4 of DR-CAFTA specifically bars a Party from entering a reservation on any provision of the Agreement without the written consent of the other Parties. This provision does not exist in the Chile-U.S FTA. A reservation is any statement purporting to exclude or modify the legal effect of a provision with regard to the declarant (UN Treaty Handbook).
Entry into Force: Article 24.4 of the Chile-U.S. FTA provides for entry into force 60 days after the Parties have exchanged written notification that they had completed the necessary domestic legal procedures, respectively. Under its Article 22.5, DR-CAFTA shall enter into force on January 1, 2005 provided that the United States and at least one other signatory notify the depositary in writing by that date that they have completed their applicable legal procedures. If the Agreement does not enter into force on January 1, 2005, DR-CAFTA shall enter into force after the U.S. and at least one other signatory make such a notification, on such later date as those signatories may agree. Thereafter DR-CAFTA shall enter into force for any other signatory within 90 days of its written notification to the depositary of completion of its applicable legal procedures, but such notification must be provided within two years of the date of entry into force, unless the Parties otherwise agree. The depositary shall promptly inform the signatories, Parties and non-Parties, of any notification made under this Article.
An important difference between the two Agreements of course is that the Chile-U.S. FTA has entered into force, which is not the case DR-CAFTA.
Accession: unlike the Chile-U.S. FTA, DR-CAFTA contains a provision for accession. Article 22.6 provides that any country or group of countries may accede to DR-CAFTA subject to such terms and conditions as may be agreed between such country(ies) and the Commission and following approval in accordance with the applicable legal procedures of each Party and acceding country. The instrument of accession shall be deposited with the depositary, which shall promptly inform each Party of the accession.
Withdrawal: under paragraph 3 of Article 24.4 of the Chile-U.S. FTA, either Party may terminate the Agreement by written notification to the other. The Agreement then expires within 180 days of this notification.
Under Article 22.7 of DR-CAFTA, any Party may withdraw from the Agreement upon written notice to the depositary, such withdrawal taking effect for that Party six months after such notice, unless the Parties agree on a different period. If a Party withdraws, DR-CAFTA remains in force for the remaining Parties.
Depositary: unlike the Chile-U.S. FTA, DR-CAFTA provides for a depositary. Article 22.8 of DR-CAFTA states that the original English and Spanish texts of the Agreement shall be deposited with the General Secretariat of the Organization of American States, which shall serve as depositary. The Depositary shall promptly provide a certified copy of the original texts to each signatory.