New Zealand - United Kingdom FTA (2022) - Electronic Database of Investment Treaties (EDIT)

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New Zealand - United Kingdom FTA (2022)

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1. Each Party shall set out in Annex 13A (Schedule of Commitments for Temporary Entry of Business Persons) its commitments for the temporary entry of business persons in its territory. Annex 13A (Schedule of Commitments for Temporary Entry of Business Persons) shall specify the conditions and limitations for temporary entry and stay, including length of stay, for each category of business persons specified by that Party.

2. A Party shall grant temporary entry or extension of temporary stay to business persons of the other Party to the extent provided for in those commitments made pursuant to paragraph 1, provided that those business persons:

(a) follow the granting Party's prescribed application procedures for the immigration formality sought; and

(b) meet all relevant eligibility requirements for temporary entry into, or extension of temporary stay in, the granting Party.

3. The sole fact that a Party grants temporary entry or extension of temporary stay to a business person of the other Party pursuant to this Chapter shall not be construed to exempt that business person from meeting any applicable licensing or other requirements, including any mandatory codes of conduct, to practise a profession or otherwise engage in business activities.

4. A Party shall not adopt or maintain limitations in the form of numerical quotas on the total number for each category of business persons of the other Party granted temporary entry in accordance with Annex 13A (Schedule of Commitments for Temporary Entry of Business Persons). A Party shall not maintain or adopt the requirement of an economic needs test, except as provided for in Annex 13A (Schedule of Commitments for Temporary Entry of Business Persons).

Article 13.6. Provision of Information

1. Further to Article 29.2 (Publication - Transparency) and Article 29.5 (Provision of Information - Transparency), each Party shall make publicly available information relating to the current requirements for temporary entry by business persons of the other Party, permitted in accordance with Annex 13A (Schedule of Commitments for Temporary Entry of Business Persons).

2. The information referred to in paragraph 1 shall include, where applicable, the following information:

(a) categories of immigration formality;

(b) documentation required and conditions to be met;

(d) application fees and an indicative timeframe of the processing of an application;

(e) the maximum length of stay under each category of immigration formality;

(f) conditions for any available extension or renewal;

(g) rules regarding accompanying dependents; (h) available review or appeal procedures; and

(i) relevant measures of general application pertaining to the temporary entry of business persons of the other Party.

3. With respect to the information referred to in paragraphs 1 and 2, each Party shall endeavour to promptly inform the other Party, either through existing mechanisms or the Services and Investment Sub-Committee, of the introduction of any new requirements and procedures or of the changes in any requirements and procedures that affect the effective application for the grant of entry into, and where applicable, permission to work in, its territory.

Article 13.7. Institutional Arrangements

The Services and Investment Sub-Committee will review and monitor the implementation and operation of this Chapter and perform other functions in accordance with Article 9.14 (Services and Investment Sub-Committee - Cross Border Trade in Services).

Article 13.8. Relation to other Chapters

1. Except for this Chapter, Chapter 1 (Initial Provisions and General Definitions), Chapter 30 (Institutional Provisions), Chapter 31 (Dispute Settlement), Chapter 33 (Final Provisions), Article 29.2 (Publication - Transparency), and Article 29.5 (Provision of Information - Transparency), no provision of this Agreement shall impose any obligation on a Party regarding its immigration measures.

2. Nothing in this Chapter shall be construed to impose obligations or commitments with respect to other Chapters of this Agreement.

Article 13.9. Dispute Settlement

1. The Parties shall endeavour to settle any differences arising out of the implementation of this Chapter amicably through consultations or negotiations. (1)

2. Neither Party shall have recourse to dispute settlement under Chapter 31 (Dispute Settlement) regarding a refusal to grant temporary entry unless:

(a) the matter involves a pattern of practice; and

(b) the business persons affected have exhausted all available administrative remedies regarding the particular matter.

3. The remedies referred to in subparagraph 2(b) shall be deemed to be exhausted if a final determination in the matter has not been issued by the other Party within a reasonable period of time after the date of the institution of proceedings for the remedy, including any proceedings for review or appeal, and the failure to issue such a determination is not attributable to delays caused by the business persons concerned.

(1) For greater certainty, this includes by way of the mechanisms set out in Article 31.3 (Cooperation - Dispute Settlement).

Article 13.10. Cooperation on Return and Readmissions

The Parties acknowledge that the temporary entry of business persons requires the Parties' full cooperation to support the return and readmission of business persons staying in a Party in contravention of its law for temporary entry.

Chapter 14. INVESTMENT

Article 14.1. Objectives

The objective of this Chapter is to encourage and promote the flow of investment between each Party on a mutually advantageous basis, under conditions of transparency within a stable framework of rules to ensure the protection and security of investments by investors of the other Party within each Party's territory, while recognising the right of each Party to regulate in order to achieve legitimate public policy objectives, such as the protection of public health, safety, and the environment.

Article 14.2. Definitions

For the Purposes of this Chapter:

“activities performed in the exercise of governmental authority” means activities which are performed, including services which are supplied, neither on a commercial basis nor in competition with one or more economic operators;

“covered investment” means, with respect to a Party, an investment in its territory of an investor of the other Party, made in accordance with the applicable law at the time the investment is made, (1) in existence as of the date of entry into force of this Agreement or established, acquired, or expanded thereafter;

“enterprise” means an enterprise as defined in Article 1.3 (General Definitions – Initial Provisions and General Definitions), and a branch or a representative office of an enterprise;

“enterprise of a Party” means an enterprise constituted or organised under the law of that Party or a branch located in the territory of that Party, that carries out substantial business activities in the territory of that Party; (2) (3)

“freely usable currency” means a “freely usable currency” as determined by the International Monetary Fund under its Articles of Agreement and amendments thereto, or any currency that is used to make international payments and is widely traded in the international principal exchange markets;

“investment” means every kind of asset that an investor owns or controls, directly or indirectly, that has the characteristics of an investment, including characteristics such as the commitment of capital or other resources, the expectation of gain or profit, or the assumption of risk. Forms that an investment may take include:

(a) an enterprise;

(b) shares, stock, and other forms of equity participation in an enterprise;

(d) futures, options, and other derivatives;

(e) rights under turnkey, construction, management, production, concession, revenue-sharing, and other similar contracts;

(f) intellectual property rights;

(g) licences, authorisations, permits, concessions, and similar rights conferred pursuant to a Party’s law; and

(h) other tangible or intangible, movable or immovable property, and related property rights, such as leases, mortgages, liens, and pledges,

but investment does not mean an order or judgment entered in a judicial or administrative action.

Returns that are invested shall be treated as investments. Any alteration of the form in which assets are invested or reinvested does not affect their qualification as investments;

“investor of a Party” means:

(a) a Party;

(b) an enterprise of a Party; or

that attempts to make, is making, or has made an investment in the territory of the other Party;

“person of a Party” means a national or an enterprise of a Party; and

“returns” means the amounts yielded by, or derived from, an investment, including profits, dividends, interest, capital gains, royalty payments, management fees, technical assistance fees, and other fees.

(1) For greater certainty, minor or technical breaches of law shall not deprive investors and covered investments of treaty protection.

(2) For greater certainty, the inclusion of a “branch” in the definitions of “enterprise” and “enterprise of a Party” is without prejudice to a Party’s ability to treat a branch under its law as an entity that has no independent legal existence and is not separately organised.

(3) An enterprise shall be deemed to carry out substantial business activities in the territory of a Party if it has a genuine link to the economy of that Party. As to whether an enterprise has a genuine link to the economy of a Party, this should be established by an overall examination, on a case-by-case basis, of the relevant circumstances. These circumstances may include whether the enterprise: (a) has a continuous physical presence, including through ownership or rental of premises, in the territory of that Party; (b) has its central administration in the territory of that Party; (c) employs staff in the territory of that Party; and (d) generates turnover and pays taxes in the territory of that Party.

(4) Some forms of debt, such as bonds, debentures, and long-term notes, are more likely to have the characteristics of an investment, while other forms of debt, such as claims to payment that are immediately due and result from the sale of goods or services, are less likely to have those characteristics.

Article 14.3. Scope

1. This Chapter shall apply to measures adopted or maintained by a Party relating to:

(a) investors of the other Party;

(b) covered investments; and

(c) with respect to Article 14.8 (Performance Requirements) and Article 14.18 (Investment and Environmental, Health, and Other Regulatory Objectives), all investments in the territory of that Party.

2. A Party's obligations under this Chapter shall apply to measures adopted or maintained by: (5)

(a) the central, regional, or local governments or authorities of that Party; and

(b) any person, including a state enterprise or any other body, when it exercises any government authority delegated to it by central, regional, or local governments or authorities of that Party.

3. With respect to the establishment of an investment, Articles 14.5 to Article 14.9 shall not apply to any measure relating to activities performed in the exercise of governmental authority.

4. For greater certainty, this Chapter shall not bind a Party in relation to any act or fact that took place or any situation that ceased to exist before the date of entry into force of this Agreement.

5. Articles 14.5 to Article 14.9 shall not apply to any measure with respect to audio-visual services.

6. In the event of any inconsistency between this Chapter and a bilateral, plurilateral, or multilateral air services agreement to which both Parties are party, the air services agreement shall prevail in determining the rights and obligations of the Parties.

7. If the Parties have the same obligations under this Agreement and a bilateral, plurilateral, or multilateral air services agreement, a Party may invoke the dispute settlement procedures of this Agreement only after any dispute settlement procedures in the other agreement have been exhausted.

(5) For greater certainty, a Party's obligations under this Chapter shall also apply to measures adopted or maintained by any other person or entity acting on the instructions of, or under the direction or control of, a person or body listed under subparagraphs (a) or (b), to the extent that those measures are attributable to a Party under international law.

Article 14.4. Relation to other Chapters

1. In the event of any inconsistency between this Chapter and another Chapter, the other Chapter shall prevail to the extent of the inconsistency.

2. A requirement of a Party that a service supplier of the other Party post a bond or other form of financial security as a condition for the cross-border supply of a service does not in itself make this Chapter applicable to measures adopted or maintained by the Party relating to that cross-border supply of the service. This Chapter shall apply to measures adopted or maintained by a Party relating to the posted bond or financial security, to the extent that the bond or financial security is a covered investment.

3. This Chapter shall not apply to measures adopted or maintained by a Party to the extent that they are covered by Chapter 11 (Financial Services).

Article 14.5. Market Access

Neither Party shall adopt or maintain, with respect to the establishment, acquisition, expansion, management, conduct, operation, or sale or other disposition of an investment of an investor of a Party or of a non-party in its territory, a measure that

(a) imposes limitations on:

(i) the number of enterprises that may carry out a specific economic activity whether in the form of numerical quotas, monopolies, exclusive suppliers, or the requirement of an economic needs test;

(ii) the total value of transactions or assets in the form of numerical quotas or the requirement of an economic needs test; (6)

(iii) the total number of operations or the total quantity of output expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test;

(iv) the participation of foreign capital in terms of maximum percentage limit on foreign shareholding or the total value of individual or aggregate foreign investment; or

(v) the total number of natural persons that may be employed in a particular sector or that an enterprise may employ and who are necessary for, and directly related to, the performance of economic activity in the form of numerical quotas or the requirement of an economic needs test; or

(b) requires that an economic activity is carried out through a specific type of legal entity or by a joint venture.

(6) Subparagraphs (a)(i), (a)(ii), and (a)(iii) do not cover measures adopted or maintained in order to limit the production of an agricultural or fisheries product.

Article 14.6. National Treatment

Each Party shall accord to investors of the other Party and covered investments treatment no less favourable than the treatment it accords, in like situations, to its own investors and to their investments with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments in its territory.

Article 14.7. Most-Favoured-Nation Treatment

1. Each Party shall accord to investors of the other Party and covered investments treatment no less favourable than the treatment it accords, in like situations, to investors of a non-party and to their investments with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments in its territory. (7)

2. Paragraph 1 shall not be construed as obliging a Party to extend to investors of the other Party or to covered investments the benefit of any treatment resulting from measures providing for recognition, including the recognition of the standards or criteria for the authorisation, licencing, or certification of a natural person or enterprise to carry out an economic activity, or the recognition of prudential measures as referred to in paragraph 3 of the GATS Annex on Financial Services.

3. For greater certainty, the treatment referred to in paragraph 1 does not encompass international dispute resolution procedures or mechanisms other than those set out in this Agreement.

(7) For greater certainty, this paragraph does not cover treatment accorded by the United Kingdom to investors (and to their investments) of territories for whose international relations the United Kingdom is responsible.

Article 14.8. Performance Requirements

1. Neither Party shall, in connection with the establishment, acquisition, expansion, management, conduct, operation, or sale or other disposition of an investment of an investor of a Party or of a non-party in its territory, impose or enforce any requirement, or enforce any commitment or undertaking: (8)

(a) to export a given level or percentage of goods or services;

(b) to achieve a given level or percentage of domestic content;

(c) to purchase, use, or accord a preference to goods produced in its territory, or to purchase goods from a person in its territory;

(d) to relate in any way the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows associated with that investment;

(e) to restrict sales of goods or services in its territory that the investment produces or supplies by relating those sales in any way to the volume or value of its exports or foreign exchange earnings;

(f) to restrict exportation or sale for export;

(g) to transfer a particular technology, a production process, or other proprietary knowledge to a person in its territory;

(h) to locate the regional or world headquarters of an enterprise in its territory;

(i) to hire a given number or percentage of its nationals;

(j) to achieve a given level or value of research and development in its territory;

(k) to supply exclusively from the territory of that Party the goods that the investment produces or the services that it supplies to a specific regional market or to the world market;

(l) (i) to purchase, use, or accord a preference to, in its territory, technology of that Party or of a person of that Party (9); or

(ii) that prevents the purchase or use of, or the according of a preference to, in its territory, a particular technology; or

(m) to adopt:

(i) a given rate or amount of royalty under a licence contract; or

(ii) a given duration of the term of a licence contract,

in regard to any licence contract in existence at the time the requirement is imposed or enforced, or any commitment or undertaking is enforced, or any future licence contract (10) freely entered into between the investor or investment and a person in its territory, provided that the requirement is imposed or enforced or the commitment or undertaking is enforced in a manner that constitutes direct interference with that licence contract by an exercise of nonjudicial governmental authority of a Party. For greater certainty, subparagraph (m) shall not apply when the licence contract is concluded between the investor or investment and a Party.

2. Neither Party shall condition the receipt or continued receipt of an advantage, in connection with the establishment, acquisition, expansion, management, conduct, operation, or sale or other disposition of an investment of an investor of a Party or of a non-party in its territory, on compliance with any requirement

(a) to achieve a given level or percentage of domestic content;

(b) to purchase, use, or accord a preference to goods produced in its territory, or to purchase goods from a person in its territory;

(c) to relate in any way the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows associated with that investment;

(d) to restrict sales of goods or services in its territory that the investment produces or supplies by relating those sales in any way to the volume or value of its exports or foreign exchange earnings; or

(e) to restrict exportation or sale for export.

3. For greater certainty, nothing in paragraph 1 shall be construed as preventing the enforcement by a Party of an undertaking voluntarily given (11) by a person in relation to a takeover or merger.

4. Nothing in paragraph 2 shall be construed to prevent a Party from conditioning the receipt or continued receipt of an advantage, in connection with an investment of an investor of a Party or of a non-party in its territory, on compliance with a requirement to locate production, supply a service, train or employ workers, construct or expand particular facilities, or carry out research and development, in its territory.

5. Subparagraphs 1(g), 1(l), and 1(m) shall not apply:

(a) if a Party authorises use of an intellectual property right in accordance with Article 31 or Article 31bis of the TRIPS Agreement, or to measures requiring the disclosure of data or proprietary information that fall within the scope of, and are consistent with, paragraph 3 of Article 39 of the TRIPS Agreement; or

(b) if the requirement is imposed or enforced, or the commitment or undertaking is enforced, by a court or administrative tribunal, or by a competition authority to remedy a situation (12) determined after a judicial or administrative process to be anti-competitive under a Party’s competition law. (13)

6. Subparagraph 1(m) shall not apply if the requirement is imposed or enforced or the commitment or undertaking is enforced by a tribunal as equitable remuneration under the Party’s copyright law.

7. Subparagraphs 1(a), 1(b), 1(c), 2(a), and 2(b), shall not apply to qualification requirements for goods or services with respect to export promotion and foreign aid programmes.

8. Subparagraphs 1(l) and 1(m) shall not be construed to prevent a Party from adopting or maintaining measures to protect legitimate public welfare objectives, provided that those measures are not applied in an arbitrary or unjustified manner, or in a manner that constitutes a disguised restriction on international trade or investment.

9. Subparagraphs 2(a) and 2(b) shall not apply to requirements imposed or enforced by an importing Party relating to the content of goods necessary to qualify for preferential tariffs or preferential quotas.

10. For greater certainty, paragraphs 1 and 2 shall not apply to any requirement other than the requirements set out in those paragraphs.

11. This Article is without prejudice to the obligations of a Party under the Agreement on Trade-Related Investment Measures in Annex 1A to the WTO Agreement.

12. This Article shall not preclude enforcement of any commitment, undertaking, or requirement between private parties, if a Party did not impose or require the commitment, undertaking, or requirement.

(8) For greater certainty, a condition for the receipt or continued receipt of an advantage referred to in paragraph 2 does not constitute a "requirement" or a "commitment or undertaking" for the purposes of paragraph 1.

(9) For the purposes of this Article, the term “technology of a Party or of a person of a Party” includes technology that is owned by a Party or a person of a Party, and technology for which a Party or a person of a Party holds an exclusive licence.

(10) A “licence contract” referred to in this subparagraph means any contract concerning the licensing of technology, a production process, or other proprietary knowledge.

(11) An “undertaking voluntarily given” means that it is not required by a Party as a condition of the approval of the takeover or merger.

(12) For greater certainty, for the purposes of this subparagraph “situation” includes any feature of a market (whether behavioural or structural) which may be subject to investigation or study under New Zealand’s competition studies laws or regulations or the United Kingdom’s market investigation law.

(13) The Parties recognise that a patent does not necessarily confer market power.

Article 14.9. Senior Management and Boards of Directors

A Party shall not require that an enterprise that is a covered investment appoint to senior management or board of director positions natural persons of a particular nationality or who are resident in the territory of that Party.

appoint to senior management or board of director positions natural persons of a particular nationality or who are resident in the territory of that Party.

Article 14.10. Non-Conforming Measures

1. Articles 14.5 (Market Access) to Article 14.9 (Senior Management and Boards of Directors) shall not apply to:

(a) any existing non-conforming measure that is maintained by a Party at:

(i) the central or regional level of government, as set out by that Party in its Schedule to Annex I (Cross-Border Trade in Services and Investment Non-Conforming Measures); or

(ii) a local level of government;

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Chapter 1 INITIAL PROVISIONS AND GENERAL DEFINITIONS 1

Article 1.1 Establishment of a Free Trade Area 1

Article 1.2 Relation to other Agreements 1

Article 1.3 General Definitions 1

Chapter 2 NATIONAL TREATMENT AND MARKET ACCESS FOR GOODS 1

Article 2.1 Definitions 1

Article 2.2 Scope 1

Article 2.3 National Treatment 1

Article 2.4 Classification of Goods 1

Article 2.5 Elimination of Customs Duties 1