3. Where the Parties have resorted to consultations under Article 8.10.2(h) without satisfactory results, such consultations shall replace consultations under Article 22.4 of Chapter 22 (Dispute Settlement).
Chapter 9. TRADE IN SERVICES
Article 9.1. Definitions
For purposes of this Chapter
trade in services means the supply of a service:
(a) from the territory of one 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;
(c) by a service supplier of a Party through commercial presence in the territory of the other Party, or
(d) by a service supplier of a Party through the presence of natural persons of a Party in the territory of the other Party;
measures adopted or maintained by a Party means measures adopted or maintained by:
(a) governments or authorities at the central, regional or local level of a Party, and
(b) non-governmental bodies in the exercise of powers delegated by governments or authorities at the central, regional or local level of a Party;
legal entity means any legal entity duly constituted or otherwise organized under applicable law, whether or not for profit and whether privately or publicly owned, including any corporation, trus?, partnership, joint venture, sole proprietorship or association;
legal person of a Party means a legal person that is incorporated or otherwise organized under the law of a Party and that engages in substantive business operations in that Party;
natural person of a Party means a national of a Party under its law and residing in the territory of that Party;
commercial presence means any type of commercial or professional establishment, through, among other means:
(a) the incorporation, acquisition or maintenance of a legal person, or
(b) the establishment or maintenance of a branch or representative office, within the territory of a Party for the purpose of supplying a service;
service supplier of a Party means any natural or juridical person of that Party that intends to supply or does supply a service;
aircraft repair and maintenance service means such activities when performed on an aircraft or part of an aircraft while the aircraft is out of service and does not include so- called line maintenance;
specialised air services means any specialised commercial operation using an aircraft whose primary purpose is not the carriage of goods or passengers, such as aerial firefighting, flight training, scenic flying, spraying, surveying, mapping, photography, parachuting, glider towing, helicopter services for logging and construction, and other air services related to agriculture, industry and inspection;
ground handling services means the provision at an airport, on a commission or contract basis, of the following services: airline representation, management and supervision; passenger assistance; baggage handling; ramp services; catering, other than food preparation; cargo and mail handling; aircraft fuelling; aircraft maintenance and cleaning; surface transportation; and flight operations, crew management and flight planning. Ground handling services do not include: self-handling; security; line maintenance; aircraft repair and maintenance; or the management or operation of essential centralized airport infrastructure, such as de-icing facilities, fuel distribution systems, baggage handling systems and fixed intra-airport transportation systems;
airport operation services means the provision of air terminal services, runway operation services and other airport infrastructure, whether on a fee or contract basis. Airport operation services do not include air navigation services;
computer reservation system services means services provided by means of computerised systems which contain information about air carriers' schedules, seat availability, fares and pricing rules and by means of which reservations can be made or tickets issued;
services supplied in the exercise of governmental authority means, for each Party, any service that is supplied neither on a commercial basis nor in competition with one or more service suppliers;
sale and marketing of air transport services means the opportunities for the air carrier concerned to freely sell and market its air transport services, including all aspects of marketing, such as market research, advertising and distribution. These activities do not include the pricing of air transport services or the applicable conditions.
Article 9.2. Scope of Application
1. This Chapter shall apply to measures adopted or maintained by a Party affecting trade in services supplied by service suppliers of the other Party. Such measures include measures affecting:
(a) the production, distribution, marketing, sale and supply of a service;
(b) the purchase or use of, or payment for, a service;
(c) access to and use of services that are offered to the general public as prescribed by a Party in connection with the supply of a service, such as access to and use of distribution, transmission or telecommunications networks and services related to the supply of a service;
(d) the presence, including commercial presence, in the territory of a Party of a service supplier of the other Party, and
(e) the provision of a bond or other form of financial security as a condition for the provision of a service.
2. This Chapter does not apply to:
(a) financial services;
(b) air services, including domestic and international air transport services, scheduled and non-scheduled, and related support services for air services, except:
(i) the sale and marketing of air transport services;
(ii) computer reservation system (CRS) services;
(iii) aircraft repair and maintenance services;
(iv) specialized air services;
(v) ground handling services, and
(vi) airport operation services.
(c) procurement, as defined in Chapter 12 (Procurement);
(d) subsidies or grants provided by a Party or a State enterprise, including government-supported loans, guarantees and insurance; and
(e) services supplied in the exercise of governmental authority in the territory of each Party.
3. This Chapter does not impose any obligation on a Party with respect to a national of the other Party who seeks to enter its labor market or who is permanently employed in its territory, nor does it confer any rights on that national with respect to such access or employment.
4. This Chapter shall not prevent a Party from applying measures to regulate the entry or temporary stay of natural persons of the other Party in its territory, including those measures necessary to protect the integrity of natural persons and to ensure the orderly movement of natural persons across its borders, provided that such measures are not applied in such a manner as to nullify or impair the benefits accruing to the other Party pursuant to the terms of a specific (1) commitment.
Article 9.3. National Treatment
1. In the sectors inscribed in the Parties' Schedules of Specific Commitments (Annexes 9.1 and 9.2) and subject to such conditions and qualifications as may be specified therein, each Party shall accord to services and service suppliers of the other Party, with respect to all measures covered by this Chapter affecting the supply of services, treatment no less favourable than that it accords to its own like services and service suppliers (2).
2. Treatment accorded by a Party in accordance with paragraph 1 means, with respect to a regional, state, provincial, cantonal or local level government, treatment no less favourable than the most favourable treatment accorded by that regional, state, provincial, cantonal or local level government to services and service suppliers of the Party of which it is an integral part.
3. A Party may meet the requirements of paragraph 1 by according to services and service suppliers of the other Party formally identical or formally different treatment to that it accords to its own like services and service suppliers.
4. Formally identical or formally different treatment shall be considered to be less favourable if it modifies the conditions of competition in favour of services or service suppliers of the other Party as compared to like services or service suppliers of the other Party.
Article 9.4. Market Access
In sectors where market access commitments are undertaken and subject to the conditions set out in the Parties' Schedules of Specific Commitments (Annexes 9.1 and 9(2), no Party may adopt or maintain, on the basis of a regional subdivision or its entire territory, measures that:
(a) impose limitations:
(i) to the number of service suppliers, either in the form of numerical quotas, monopolies, exclusive service suppliers or by requiring an economic needs test;
(ii) to the total value of assets or service transactions in the form of numerical quotas or by requiring an economic needs test;
(iii) to the total number of service operations or the total quantity of service output, expressed in designated numerical units, in the form of quotas or by requiring an economic (3) needs test ;
(iv) the total number of natural persons who may be employed in a given service sector or who may be employed by a service supplier and who are necessary for and directly related to the supply of a specific service, in the form of numerical quotas or through the requirement of an economic needs test, or
(v) to foreign equity participation expressed as a maximum percentage limit on foreign share ownership or as the total value of individual or aggregate foreign investments.
(b) restrict or prescribe the specific types of legal person or joint venture through which a service supplier may supply a service.
Article 9.5. Additional Commitments
The Parties may negotiate commitments with respect to measures affecting trade in services, but which are not subject to scheduling in the Parties' Schedules of specific commitments under Articles 9.3 and 9.4, including those relating to qualifications, standards or licensing issues. Such commitments shall be inscribed in the Parties' Schedules of Specific Commitments (Annexes 9.1 and 9.2).
Article 9.6. List of Specific Commitments
1. Each Party shall inscribe in its Schedule of Specific Commitments (Annexes 9.1 and 9.2), the specific commitments it undertakes pursuant to Articles 9.3, 9.4 and 9.5. With respect to the sectors in which such commitments are made, each Schedule shall specify:
(a) the terms, limitations and conditions on market access;
(b) conditions and qualifications regarding national treatment;
(c) the obligations relating to the additional commitments referred to in Article 9.5, and
(d) where appropriate, the timeframe for implementation and the date of entry into force of such commitments.
2. Measures inconsistent with Articles 9.3 and 9.4 should be reported in the appropriate column.
Article 9.7. Transparency
1. Each Party shall publish, as soon as possible and no later than the date of their entry into force, all relevant measures of general application relating to or affecting the operation of this Chapter. Each Party shall also publish international agreements it enters into with any country relating to or affecting trade in services.
2. Each Party shall respond as promptly as possible to all requests for specific information from the other Party regarding any of its measures of general application referred to in paragraph 1. In addition, and in accordance with its legal system, each Party shall, through its competent authorities, provide, to the extent practicable, information on notifiable matters to service suppliers of the other Party upon request.
3. This Article shall not be construed to impose any obligation on either Party to furnish confidential information the disclosure of which would impede law enforcement or otherwise be contrary to the public interest, or would prejudice the legitimate commercial interests of public or private enterprises.
Article 9.8. National Regulations
1. Each Party shall ensure that all measures of general application affecting trade in services are administered in a reasonable, objective and impartial manner.
2. Where a Party requires authorization for the supply of a service, the competent authorities of that Party:
(a) where practicable, in the case of an incomplete application, upon request of the applicant, identify the additional information required to complete the application and provide an opportunity to correct minor errors or omissions in the application;
(b) within a reasonable time after the submission of an application that is considered complete under its legal system, inform the applicant of the decision on the application;
(c) as far as practicable, set indicative time limits for the processing of an application;
(d) at the request of the applicant, provide, without undue delay, information concerning the status of the application;
(e) if an application is refused, inform the applicant, as far as practicable, of the reasons for the refusal, either directly or at the request of the applicant, and
(f) as far as practicable and in accordance with their legal system, accept copies of authenticated documents in lieu of original documents.
3. In order to ensure that measures relating to qualification requirements and procedures, technical standards and licensing requirements do not constitute unnecessary barriers to trade in services, each Party shall endeavour to ensure that such measures do not constitute unnecessary barriers to trade in services:
(a) be based on objective and transparent criteria, such as competence and capacity to provide the service;
(b) not more burdensome than necessary to ensure quality of service, and
(c) in the case of licensing procedures, do not in themselves constitute a restriction on the supply of the service.
4. Each Party shall ensure that any fee charged by the competent authority to authorize the supply of a service is reasonable, transparent and does not itself restrict the supply of that service. For the purposes of this paragraph, "fee" does not include payments for the use of natural resources, payments for auctions, tenders or other non-discriminatory means of granting concessions, or compulsory contributions for the provision of a universal service.
5. If licensing or qualification requirements include an assessment, each Party shall ensure that:
(a) the evaluation is scheduled at reasonable intervals, and
(b) areasonable period of time is provided to allow interested persons to submit an application to participate in the evaluation.
6. Each Party shall ensure that procedures are in place to verify the competencies of professionals of the other Party.
7. Each Party shall, to the extent practicable, ensure that information regarding licensing and qualification requirements and procedures includes the following:
(a) whether the renewal of the licence or of the certificates of competence for the provision of a service is required;
(b) the contact details of the competent authority;
(c) the applicable licensing and qualification requirements, procedures and costs, and
(d) the procedures relating to appeals or reviews of applications, if any.
8. The Parties recognize their mutual obligations relating to domestic regulation in Article VI:4 of the GATS and affirm their commitment to the development of any necessary disciplines in accordance therewith.
9. To the extent that any such disciplines are adopted by WTO Members or developed in another multilateral forum in which the Parties participate, the Parties shall jointly review them, as appropriate, with a view to determining whether such results should be incorporated into this Chapter.
10.â This Article shall not apply to measures that a Party adopts or maintains pursuant to its Schedule of Specific Commitments (Annexes 9.1 and 9.2).
Article 9.9. Mutual Recognition
1. For purposes of meeting its relevant standards or criteria for the authorisation or certification of service suppliers or the licensing of service suppliers, each Party may recognise education or experience obtained, requirements met, or licences or certificates granted in another Party. Such recognition may be based on an agreement or arrangement with that other Party, or granted autonomously.
2. Where a Party recognises, by agreement or arrangement, education or experience obtained, requirements met, or licences or certificates granted in the territory of a non- Party, that Party shall provide adequate opportunities for the other Party to negotiate its accession to such an existing or future agreement or arrangement, or to negotiate with it a comparable agreement or arrangement. Where a Party grants recognition autonomously, it shall provide appropriate opportunities for the other Party to demonstrate that education or experience obtained, requirements met, or licences or certificates granted in the territory of the other Party shall also be subject to recognition.
3. No Party shall accord recognition in a manner that would constitute a means of discrimination between Parties in the application of its standards or criteria for the authorization or certification of, or the licensing of service suppliers, or a disguised restriction on trade in services.
Article 9.10. Cooperation and Mutual Assistance In the Field of Services
The Parties recognize the importance of cooperation, exchange of information and mutual assistance to enable:
(a) share methodologies and publish statistics on the Parties' international trade in services, based on international standards;
(b) the development of dialogues, bilateral meetings between the Parties, regulatory authorities and stakeholders;
(c) the exchange of data, information and practices related to the development of new regulatory measures, including the conduct of public consultations, and
(d) identify and analyse barriers affecting trade in services with a view to their reduction or elimination.
Article 9.11. Denial of Benefits
Subject to prior notification, a Party may deny the benefits of this Chapter to a service supplier of the other Party if the service supplier:
(a) has no substantial business operations in the territory of the other Party;
(b) is not a natural or juridical person of the other Party, as defined in this Chapter, or
(c) supplies the service from or in the territory of a non-Party.
Chapter 10. ELECTRONIC COMMERCE
Article 10.1. Definitions
For the purposes of this Chapter:
electronic authentication means the process or action of verifying the identity of a party to an electronic communication or transaction;
trade administration documents means forms that a Party issues or controls, which are required to be completed by or for an importer or exporter in connection with the importation or exportation of goods;
electronic signature (1) means data in electronic form attached to an electronic document that enables the signatory or signatory to be identified;
personal information means any information, including data, about an identified or identifiable natural person;
computer facilities means computer servers and storage devices for processing or storing information for commercial use;
unsolicited electronic commercial messages means an electronic message that is sent for commercial or advertising purposes without the consent of the recipients, or against the explicit will of the recipient, using an Internet service or, in accordance with each Party's legal system, by other telecommunications services;
digital product means a computer program, text, video, image, sound recording, or other product that is digitally encoded, produced for commercial sale or distribution, and that can be transmitted electronically; (2) and (3)
electronic transmission or electronically transmitted means a transmission made using any electromagnetic means, including transmissions by optical means.
Article 10.2. Scope of Application and General Provisions
1. This Chapter shall apply to measures adopted or maintained by a Party affecting trade by electronic means.
2. This Chapter shall not apply to:
(a) public procurement;
(b) subsidies or concessions provided by a Party, including loans, guarantees and insurance supported by States;
(c) information held or processed by or on behalf of a Party, or measures relating to such information, including measures relating to its compilation, or
(d) financial services.
3. The Parties recognise the economic potential and opportunities provided by electronic commerce, and agree to promote the development of electronic commerce between them, in particular through cooperation on issues arising from electronic commerce under the provisions of this Chapter.
4. Considering the potential of electronic commerce as a tool for social and economic development, the Parties recognize the importance of:
(a) the clarity, transparency and predictability of their national regulatory frameworks to facilitate, to the extent possible, the development of electronic commerce;
(b) encourage self-regulation in the private sector to promote trust and confidence in e-commerce, taking into account the interests of users, through initiatives such as industry guidelines, model contracts, codes of conduct and trust seals;
(c) interoperability, to facilitate electronic commerce;
(d) innovation and digitalization in e-commerce;
(e) ensure that international and national e-commerce policies take into account the interest of their stakeholders;
(f) facilitate access to electronic commerce for Micro, Small and Medium Enterprises (hereinafter referred to as "MSMEs") and the Actors of the Popular and Solidarity Economy (hereinafter referred to as "AEPYS"), and
(g) ensuring the security of e-commerce users, as well as their right to protection of personal data (4).
5. Each Party shall endeavour to adopt measures to facilitate trade conducted by electronic means.
6. The Parties recognize the importance of avoiding unnecessary barriers to trade conducted by electronic means, including trade in digital products. Taking into account their respective policy objectives, each Party shall endeavour to avoid measures which: