(f) procedures for monitoring or enforcing compliance with the licensing requirements or qualifications requirements;
(g) opportunities for public involvement, such as through hearings or comments; and
(bh) indicative timeframes for the processing of an application.
2. To the extent practicable, each Party shall require its competent authorities to respond to any reasonable request for information or assistance.
Article 10.13. Review Procedures for Administrative Decisions
Each Party shall maintain judicial, arbitral, or administrative tribunals or procedures which provide, at the request of an affected service supplier of the other Party or person of the other Party pursuing an economic activity, for the prompt review of and, where justified, appropriate remedies for, administrative decisions that affect the supply of a service or pursuit of an economic activity. Where those procedures are not independent of the competent authority of a Party entrusted with the administrative decision concerned, the Party shall ensure that the procedures provide for an objective and impartial review.
Article 10.14. Technical Standards
Each Party shall encourage its competent authorities, when adopting technical standards, to adopt technical standards developed through open and transparent processes, and shall encourage any body, including relevant international organisations, (10) designated to develop technical standards to use open and transparent processes.
Article 10.15. Limited Number of Licences
If the number of licences available for a given activity is limited because of the scarcity of available natural resources or technical capacity, a Party shall in accordance with its laws and regulations apply a selection procedure to potential candidates which provides full guarantees of impartiality and transparency, including, in particular, adequate publicity about the launch, conduct, and completion of the procedure. In establishing the rules for the selection procedure, a Party may take into account legitimate public policy objectives, including, but not limited to, considerations of health, safety, the protection of the environment, and the preservation of cultural heritage.
Article 10.16. Opportunity to Comment Before Entry Into Force
To the extent practicable and in a manner consistent with its legal system for adopting laws and regulations, each Party shall consider any comment received in response to any consultation documentation published pursuant to paragraph 2 of Article 29.2 (Publication - Transparency) in relation to matters within the scope of this Chapter and make publicly available a summary of how relevant input received has informed the development of the proposed measure. (11)
Article 10.17. Enquiry Points
Each Party shall maintain or establish appropriate mechanisms for responding to enquiries from service suppliers or persons pursuing an economic activity regarding the measures within the scope of this Chapter.
Chapter 11. FINANCIAL SERVICES
Article 11.1. Definitions
For the purposes of this Chapter:
"commercial presence" means any type of business or professional establishment, including through:
(a) the constitution, acquisition, or maintenance of an enterprise; or
(b) the creation or maintenance of a branch or a representative office,
within the territory of a Party for the purpose of supplying a service including, but not limited to, supplying a financial service;
"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 that service;
"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 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;
"enterprise of a Party" means an enterprise as defined in Article 1.3 (General Definitions - Initial Provisions and General Definitions) constituted or organised under the law in force in any part of the territory of a Party and that carries out substantial business activities in the territory of that Party; (1)
"established financial service supplier" means a financial service supplier that supplies a financial service through commercial presence;
"established financial service supplier of the other Party" means an established financial service supplier located in the territory of a Party that is controlled by a person of the other Party;
"financial service" means any service of a financial nature, including insurance and insurance related services, banking and other financial services (excluding insurance), and services incidental or auxiliary to a service of a financial nature. Financial services include the following activities:
(a) insurance and insurance related services:
(i) direct insurance (including co-insurance):
(A) life; and
(B) non-life;
(ii) reinsurance and retrocession;
(iii) insurance intermediation, such as brokerage and agency; and
(iv) services auxiliary to insurance, such as consultancy, actuarial, risk assessment, and claim settlement services;
(b) banking and other financial services (excluding insurance):
(i) acceptance of deposits and other repayable funds from the public;
(ii) lending of all types, including consumer credit, mortgage credit, factoring, and financing of commercial transactions;
(iii) financial leasing;
(iv) all payment and money transmission services, including credit, charge and debit cards, travellers’ cheques, and bankers’ drafts;
(v) guarantees and commitments;
(vi) trading for own account or for account of customers, whether on an exchange, in an over-the-counter market or otherwise, the following:
(A) money market instruments (including cheques, bills, or certificates of deposits);
(B) foreign exchange;
(C) derivative products including futures and options;
(D) exchange rate and interest rate instruments, including products such as swaps and forward rate agreements;
(E) transferable securities; and
(F) other negotiable instruments and financial assets, including bullion;
(vii) 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;
(viii) money broking;
(ix) asset management, such as cash or portfolio management, all forms of collective investment management, pension fund management, custodial, depository, and trust services;
(x) settlement and clearing services for financial assets, including securities, derivative products, and other negotiable instruments;
(xi) provision and transfer of financial information, and financial data processing and related software by suppliers of other financial services; and
(xii) advisory, intermediation, and other auxiliary financial services on all the activities listed in subparagraphs (i) to (xi), including credit reference and analysis, investment and portfolio research and advice, advice on acquisitions, and on corporate restructuring and strategy;
"financial service supplier" means a person of a Party that supplies, or seeks to supply, a financial service, but does not include a public entity;
"investment" means "investment" as defined in Article 14.1 (Definitions - Investment), (2) except that, with respect to "loans" and "debt instruments" referred to in that Article:
(a) a loan to or debt instrument issued by an established financial service supplier is an investment only if it is treated as regulatory capital by the Party in whose territory the established financial service supplier is located; and
(b) a loan granted by or debt instrument owned by an established financial service supplier, other than a loan to or debt instrument issued by an established financial service supplier referred to in subparagraph (a), is not an investment;
"investor" means a Party, or a person of a Party, that attempts to make, is making, or has made an investment in the territory of the other Party;
"new financial service" means a financial service, including services related to existing and new products or the manner in which a product is delivered, that is not supplied by any financial service supplier in the territory of one Party, but which is supplied in the territory of the other Party;
"person of a Party" means a national or an enterprise of a Party and, for greater certainty, does not include a branch of an enterprise of a non-party;
"public entity" means:
(a) a government, a central bank or a monetary authority of a Party or any entity owned or controlled by a Party, that is principally engaged in carrying out governmental functions or activities for governmental purposes, not including an entity principally engaged in supplying financial services on commercial terms; or
(b) aprivate entity performing functions normally performed by a central bank or monetary authority when exercising those functions; and
"self-regulatory organisation" means a non-governmental body, including any securities or futures exchange or market clearing agency, or other organisation or association, that exercises its own or delegated regulatory or supervisory authority over financial service suppliers.
Article 11.2. Scope
1. This Chapter shall apply to any measure adopted or maintained by a Party affecting trade in financial services with respect to:
(a) an established financial service supplier of the other Party;
(b) aninvestor of the other Party, and an investment of that investor, in an established financial service supplier in the Party's territory; and
(c) cross-border trade in financial services.
2. Chapter 14 (Investment) and Chapter 9 (Cross-Border Trade in Services) apply to measures described in paragraph 1 only to the extent that those Chapters or Articles of those Chapters are incorporated into this Chapter:
(a) Articles 14.11 (Minimum Standard of Treatment - Investment) to Article 14.19 (Corporate Social Responsibility - Investment) and Article 9.11 (Denial of Benefits - Cross-Border Trade in Services) are incorporated into and made a part of this Chapter.
(b) Article 9.9 (Payments and Transfers - Cross-Border Trade in Services) is incorporated into and made a part of this Chapter to the extent that cross-border trade in financial services is subject to obligations pursuant to subparagraphs 1(c) and 1(d) of Article 11.5 (National Treatment) and subparagraph 1(c) of Article 11.6 (Market Access).
3. This Chapter shall not apply to a measure adopted or maintained by a Party relating to:
(a) activities or services forming part of a public retirement plan or statutory system of social security; or
(b) activities or services conducted for the account or with the guarantee or using the financial resources of the Party, including its public entities,
except that this Chapter applies to the extent that a Party allows any of the activities or services referred to in subparagraphs (a) or (b) to be conducted by its financial service suppliers in competition with a public entity or a financial service supplier.
4. This Chapter shall not apply to government procurement of financial services.
5. This Chapter shall not apply to subsidies or grants with respect to the cross- border supply of financial services, including government-supported loans, guarantees, and insurance.
6. This Chapter does not impose any obligation on a Party with respect to a national of the other Party who seeks access to its employment market or who is employed on a permanent basis in its territory, and does not confer any right on that national with respect to that access or employment.
Article 11.3. Specific Exceptions
1. This Agreement does not apply to measures taken or activities conducted by a central bank or monetary authority or by any other public entity in pursuit of monetary policies and related credit policies, or exchange rate policies.
2. This Agreement does not require a Party to furnish or allow access to information relating to the affairs and accounts of individual consumers, financial service suppliers or to any confidential information which, if disclosed, would interfere with specific regulatory, supervisory, or law enforcement matters, or would otherwise be contrary to public interest or prejudice legitimate commercial interests of particular enterprises.
Article 11.4. Prudential Exception
1. This Agreement does not prevent a Party from adopting or maintaining measures for prudential reasons, (3) including:
(a) the protection of investors, depositors, policyholders, or persons to whom a financial service supplier owes a fiduciary duty;
(b) the maintenance of the safety, soundness, integrity, or financial responsibility of an established financial service supplier, cross- border financial service supplier, or a financial service supplier; or
(c) ensuring the integrity and stability of a Party's financial system.
2. Where such measures do not conform with the provisions of this Agreement, they shall not be used as a means of avoiding the Party's commitments or obligations under this Agreement.
Article 11.5. National Treatment
1. Each Party shall accord to:
(a) established financial service suppliers of the other Party, treatment no less favourable than that it accords, in like situations, to its own established financial service suppliers;
(b) investors and investments of investors of the other Party in established financial service suppliers, treatment no less favourable than that it accords, in like situations, to its own investors and to investments of its own investors in established financial service suppliers;
(c) financial services as specified by the Party in Annex 11A (Cross- Border Trade in Financial Services) or cross-border financial service suppliers of the other Party seeking to supply or supplying such financial services, treatment no less favourable than that it accords to its own like financial services and financial service suppliers; and
(d) cross-border financial service suppliers of the other Party seeking to supply or supplying financial services as defined in subparagraph (b) or subparagraph (c) of the definition of "cross-border trade in financial services" or financial services supplied through such cross-border trade, treatment no less favourable than that it accords to its own like financial services and financial service suppliers.
2. A Party may meet the requirement of paragraph 1 by according to:
(a) established financial service suppliers of the other Party, either formally identical treatment or formally different treatment to that it accords, in like situations, to its own established financial service suppliers;
(b) investors and investments of investors of the other Party in established financial service suppliers, either formally identical treatment or formally different treatment to that it accords, in like situations, to its own investors and investments of its own investors in established financial service suppliers; or
(c) financial services and cross-border financial service suppliers of the other Party, either formally identical treatment or formally different treatment to that it accords to its own like financial services and financial service suppliers.
3. Formally identical or formally different treatment shall be considered to be less favourable if it modifies the conditions of competition in favour of:
(a) established financial service suppliers of the Party compared to established financial service suppliers of the other Party, in like situations;
(b) investors and investments of investors of the Party in established financial service suppliers compared to investors and investments of investors of the other Party in established financial service suppliers, in like situations; or
(c) financial services or financial service suppliers of the Party compared to like financial services or cross-border financial service suppliers of the other Party.
Nothing in this Article shall be construed to require a Party to compensate for any inherent competitive disadvantages which result from the foreign character of the relevant financial services or financial service suppliers.
Article 11.6. Market Access
1. A Party shall not adopt or maintain, with respect to:
(a) an established financial service supplier of the other Party;
(b) an investor or an investment of an investor of the other Party in an established financial service supplier in the Party’s territory; or
(c) a cross-border financial service supplier of the other Party:
(i) seeking to supply or supplying the financial services as specified by the Party in Annex 11A (Cross-Border Trade in Financial Services); or
(ii) engaged in the cross-border trade in financial services or seeking to supply such services as defined in subparagraph (b) or subparagraph (c) of the definition of “cross-border trade in financial services”,
on the basis of its entire territory a measure that:
(d) imposes limitations on:
(i) the number of established financial service suppliers or crossborder financial service suppliers, whether in the form of numerical quotas, monopolies, exclusive service suppliers, or the requirement of an economic needs test;
(ii) the total value of financial service transactions or assets in the form of numerical quotas or the requirement of an economic needs test;
(iii) the total number of financial service operations or the total quantity of financial services output expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test;
Article 11.7. Financial Data and Information (4)
1. Neither Party shall restrict a financial service supplier of the other Party from transferring information, including transfers of data by electronic means, where such transfers are necessary for the conduct of the ordinary business of the financial service supplier.
2. Subject to paragraphs 3 and 4, it is prohibited for a Party to require, as a condition for conducting business in the Party's territory, a financial service supplier of the other Party to use, store, or process information in the Party's territory. This prohibition also applies to circumstances in which a financial service supplier of the other Party uses the services of an external business for such use, storage, or processing of information.
3. Each Party has the right to require that information of a financial service supplier of the other Party is used, stored, or processed in its territory, where it is not able to ensure access to information required for the purposes of financial regulation and supervision, provided that the following conditions are met:
(a) to the extent practicable, the Party provides a financial service supplier of the other Party with a reasonable opportunity to remediate any lack of access to information; and
(b) the Party or its regulatory authorities consult the other Party or its regulatory authorities before imposing any requirements to a financial service supplier of the other Party to use, store, or process information in its territory.
4. Nothing in this Article shall restrict the right of a Party to adopt or maintain measures inconsistent with paragraph 1 or paragraph 2 to achieve a legitimate public policy objective, such as the protection of personal data, personal privacy, and the confidentiality of individual records and accounts, provided that such measures:
(a) are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade; and
(b) do not impose restrictions on transfers of information greater than are required to achieve the objective.
Article 11.8. Payment and Clearing
Under terms and conditions that accord national treatment, each Party shall grant to established financial service suppliers of the other Party in its territory access to payment and clearing systems operated by public entities, and to official funding and refinancing facilities available in the normal course of ordinary business. This Article does not confer access to the Partyâs lender of last resort facilities.
Article 11.9. Self-Regulatory Organisations
If a Party requires a financial service supplier of the other Party to be a member of, participate in, or have access to, a self-regulatory organisation to supply a financial service in or into the territory of that Party, or grants a privilege or advantage when supplying a financial service through a self-regulatory organisation, then the requiring Party shall ensure that the self-regulatory organisation observes the obligations contained in Article 11.5 (National Treatment).
Article 11.10. Senior Management and Boards of Directors
1. Neither Party shall require established financial service suppliers of the other Party to engage natural persons of any particular nationality as members of the board of directors, senior managerial, or other essential personnel.
2. Neither Party shall require that more than a simple majority of the board of directors of established financial service suppliers of the other Party be composed of persons residing in the territory of the Party.
Article 11.11. Transparency
1. The Parties recognise that transparent measures of general application governing the activities of financial service suppliers are important in facilitating their ability to gain access to and operate in each other's markets. Each Party commits to promote regulatory transparency in financial services.
2. Each Party shall:
(a) ensure that all measures of general application to which this Chapter applies are administered in a reasonable, objective, and impartial manner;
(b) to the extent practicable and in a manner consistent with its legal system ensure that its laws, regulations, procedures, and administrative rulings of general application to which this Chapter applies are promptly published or made available in such a manner as to enable an interested person and the other Party to become acquainted with them;
(c) to the extent practicable, ensure advance publication of any laws, regulations, procedures, and administrative rulings of general application to which this Chapter applies that it proposes to adopt and provide an interested person and the other Party a reasonable opportunity to comment on these proposed measures;
(d) maintain or establish appropriate mechanisms to respond, within a reasonable period of time, to an inquiry or a request for information from an interested person regarding measures of general application to which this Chapter applies;
(e) allow, to the extent practicable, a reasonable period of time between the final publication of a law or regulation of general application to which this Chapter applies and the date when it enters into effect; and
(f) ensure that measures of general application adopted or maintained by a self-regulatory organisation of the Party, to which this Chapter applies, are promptly published or otherwise made available in a manner that enables interested persons to become acquainted with them.