Article 32.5. Treaty of Waitangi
1. Provided that such measures are not used as a means of arbitrary or unjustified discrimination against persons of the other Party or as a disguised restriction on trade in goods, trade in services, and investment, nothing in this Agreement shall preclude the adoption by New Zealand of measures it deems necessary to accord more favourable treatment to Maori in respect of matters covered by this Agreement including in fulfilment of its obligations under the Treaty of Waitangi.
2. The Parties agree that the interpretation of the Treaty of Waitangi, including as to the nature of the rights and obligations arising under it, shall not be subject to the dispute settlement provisions of this Agreement. Chapter 31 (Dispute Settlement) shall otherwise apply to this Article. A panel established under Article 31.6 (Establishment of a Panel - Dispute Settlement) may be requested by the other Party to determine only whether any measure (referred to in paragraph 1) is inconsistent with its rights under this Agreement.
Article 32.6. The National Health Service of the United Kingdom and the New Zealand Health and Disability System
The Parties recall the exclusions and exceptions in this Agreement that are applicable to the National Health Service of the United Kingdom, (6) and to the New Zealand health and disability system, including as set out in the relevant provisions of this Chapter, of Chapter 9 (Cross-Border Trade in Services), Chapter 10 (Domestic Regulation), Chapter 14 (Investment), Chapter 16 (Government Procurement), Chapter 17 (Intellectual Property), and of Annex I (Cross-Border Trade in Services and Investment Non-Conforming Measures) and Annex II (Cross- Border Trade in Services and Investment Non-Conforming Measures).
Article 32.7. Disclosure of Information
Nothing in this Agreement shall be construed to require a Party to furnish or allow access to information, the disclosure of which would be contrary to its laws and regulations or impede law enforcement, or otherwise be contrary to the public interest, or which would prejudice legitimate commercial interests of particular enterprises, public or private.
Article 32.8. Confidentiality
Where a Party provides information to the other Party in accordance with this Agreement and designates the information as confidential, the other Party shall maintain the confidentiality of the information. Such information shall be used only for the purposes specified, and shall not be otherwise disclosed without the specific written permission of the Party providing the information, except to the extent that the Party receiving the information is required under its law to provide the information, including for the purpose of judicial proceedings.
Chapter 33. FINAL PROVISIONS
Article 33.1. Annexes, Appendices, and Footnotes
The Annexes, Appendices, and footnotes to this Agreement shall constitute an integral part of this Agreement.
Article 33.2. Amended or Successor International Agreements
Where international agreements (1) are referred to or incorporated into this Agreement, in whole or in part, they shall be understood to include amendments thereto or their successor agreements entering into force for both Parties on or after the date of signature of this Agreement. If any matter arises regarding the implementation or application of this Agreement as a result of those amendments or successor agreements, the Parties may, on request of either Party, consult with each other with a view to finding a mutually satisfactory solution to this matter as necessary.
Article 33.3. Amendments
The Parties may agree, in writing, to amend this Agreement. Any amendment shall enter into force on a date agreed by the Parties, following delivery of the latter of the Parties' notifications confirming completion of their respective applicable internal requirements for entry into force, unless the Parties agree otherwise.
Article 33.4. Termination
This Agreement may be terminated by either Party on giving six months' written notice to the other Party, unless the Parties agree otherwise.
Article 33.5. Laws and Regulations and Their Amendments
Where reference is made in the Agreement to laws or regulations of a Party, those laws or regulations shall be understood to include amendments thereto and successor laws or regulations, unless otherwise provided in the Agreement.
Article 33.6. Territorial Extension
1. At the time of entry into force of this Agreement, or any time thereafter, this Agreement, or specified provisions of it, may be extended to such territories for whose international relations the United Kingdom is responsible as the Parties may agree.
2. For greater certainty, an extension in accordance with paragraph 1 may include extension of further provisions of this Agreement to the Bailiwicks of Guernsey and Jersey and the Isle of Man, as well as any extension to any other territories for whose international relations the United Kingdom is responsible, including, but not limited to, Gibraltar.
Article 33.7. Territorial Disapplication
1. At any time after entry into force of this Agreement, the United Kingdom may give written notice to New Zealand that this Agreement, or specified provisions of it, shall no longer apply to a territory for whose international relations the United Kingdom is responsible.
2. If the United Kingdom gives notice in writing pursuant to this Article, the Parties shall hold consultations promptly to agree a mutually satisfactory solution. Notwithstanding such consultations, if notice in writing is given that this Agreement as a whole is no longer to apply to a territory for whose international relations the United Kingdom is responsible, the notification shall take effect 12 months after the date on which the United Kingdom has provided written notice to New Zealand, or on such other date as the Parties may agree. Any amendment to this Agreement required as a result of the Agreement, or specified provisions of it, no longer applying to a territory for whose international relations the United Kingdom is responsible shall be made in accordance with Article 33.3 (Amendments).
Article 33.8. Entry Into Force
Entry into force of this Agreement shall be subject to the completion of the necessary domestic procedures of each of the Parties. This Agreement shall enter into force on such date as the Parties may agree in writing, following delivery of the latter of the Parties' written notifications confirming completion of their respective applicable legal requirements and procedures for entry into force.
Conclusion
IN WITNESS WHEREOF the undersigned, duly authorised thereto by their respective Governments, have signed this Agreement.
Done in duplicate at on this day of 2022 in the English language.
For the Government of the United Kingdom of Great Britain and Northern Ireland:
For the Government of New Zealand:
Attachments
Annex I. CROSS-BORDER TRADE IN SERVICES AND INVESTMENT. NON-CONFORMING MEASURES
Explanatory Notes
1. The Schedule of a Party to this Annex sets out, pursuant to Article 9.8 (Non- Conforming Measures - Cross-Border Trade in Services) and Article 14.10 (Non-Conforming Measures - Investment), a Party's existing non-conforming measures that are not subject to some or all of the obligations imposed by:
(a) Article 9.5 (National Treatment - Cross-Border Trade in Services) or Article 14.6 (National Treatment - Investment);
(b) Article 9.6 (Most-Favoured-Nation Treatment - Cross-Border Trade in Services) or Article 14.7 (Most-Favoured-Nation Treatment - Investment);
(c) Article 9.4 (Market Access - Cross-Border Trade in Services) or Article 14.5 (Market Access - Investment);
(d) Article 9.7 (Local Presence - Cross-Border Trade in Services);
(e) Article 14.8 (Performance Requirements - Investment); or
(f) Article 14.9 (Senior Management and Boards of Directors - Investment).
2. Each Schedule entry sets out the following elements:
(a) "Sector" refers to the sector for which the entry is made;
(b) "Sub-Sector", where referenced, refers to the specific sub-sector for which the entry is made;
(c) "Industry Classification", where referenced, refers to the activity covered by the entry, according to the CPC, ISIC Rev. 3.1, or as expressly otherwise described in that entry:
(i) "ISIC Rev. 3.1" means the International Standard Industrial Classification of All Economic Activities (Statistical Papers, Series M No. 4, ISIC Rev. 3.1, Statistical Office of the United Nations, New York, 2002); and
(ii) "CPC" means the Provisional Central Product Classification (Statistical Papers, Series M No. 77, Department of International Economic and Social Affairs, Statistical Office of the United Nations, New York, 1991);
(d) "Obligations Concerned" specifies the obligations referred to in paragraph 1 that, pursuant to Article 9.8 (Non-Conforming Measures - Cross-Border Trade in Services) and Article 14.10 (Non- Conforming Measures - Investment), do not apply to the listed measure or measures as indicated in the introductory note for each Party's Schedule;
(e) "Level of Government, where referenced, indicates the level of government maintaining the listed measures;
(f) "Measures" identifies the laws, regulations, or other measures for which the entry is made. A measure cited in the "Measures" element:
(i) means the measure as amended, continued, or renewed as of the date of entry into force of this Agreement; and
(ii) includes any subordinate measure adopted or maintained under the authority of and consistent with the measure; and
(g) "Description", as indicated in the introductory note for each Party's Schedule, either sets out the non-conforming measure or provides a general non-binding description of the measure for which the entry is made.
3. For greater certainty, ifa Party adopts a new measure at a level of government different to the level of government originally specified in an entry, and this new measure effectively replaces (within the territory to which it applies) the non-conforming aspect of the original measure cited in the "Measures" element, the new measure shall be deemed to constitute "amendment" to the original measure within the meaning of subparagraph 1(c) of Article 9.8 (Non-Conforming Measures - Cross-Border Trade in Services) and subparagraph l(c) of Article 14.10 (Non-Conforming Measures - Investment).
4. The list of entries below does not include measures relating to qualification requirements and procedures, technical standards, authorisation requirements, and licensing requirements and procedures where they do not constitute a limitation within the meaning of Article 9.4 (Market Access - Cross-Border Trade in Services), Article 9.5 (National Treatment - Cross- Border Trade in Services), Article 9.7 (Local Presence - Cross-Border Trade in Services), Article 14.5 (Market Access - Investment), or Article 14.6 (National Treatment - Investment). These measures may include, in particular, the need to obtain a licence, to satisfy universal service obligations, to have recognised qualifications in regulated sectors, to have completed a recognised period of training, to pass specific examinations, including language examinations, to fulfil a membership requirement of a particular profession, such as membership in a professional organisation, to have a local agent for service, or to maintain a local address, or any non-discriminatory requirements that certain activities may not be carried out in protected zones or areas. While not listed, such measures continue to apply.
5. For greater certainty, non-discriminatory measures do not constitute a market access limitation within the meaning of Article 9.4 (Market Access - Cross- Border Trade in Services) or Article 14.5 (Market Access - Investment) for any measure:
(a) requiring the separation of the ownership of infrastructure from the ownership of the goods or services provided through that infrastructure to ensure fair competition, for example in the fields of energy, transportation, and telecommunications;
(b) restricting the concentration of ownership to ensure fair competition;
(c) seeking to ensure the conservation and protection of natural resources and the environment (including with respect to climate change), including a limitation on the availability, number, and scope of concessions granted, and the imposition of a moratorium or ban;
(d) limiting the number of authorisations granted because of technical or physical constraints, for example telecommunications spectra and frequencies; or
(e) requiring that a certain percentage of the shareholders, owners, partners, or directors of an enterprise be qualified or practise a certain profession such as lawyers or accountants.
6. A Party's entry for a requirement to have a local presence in the territory of that Party is made against Article 9.7 (Local Presence - Cross-Border Trade in Services), and not against Article 9.4 (Market Access - Cross-Border Trade in Services)or Article 9.5 (National Treatment - Cross-Border Trade in Services).
Annex I. Schedule of New Zealand
Introductory Notes
1. "Description" sets out the non-conforming measure to which the entry applies.
In accordance with Article 9.8 (Non-Conforming Measures - Cross-Border Trade in Services) and Article 14.10 (Non-Conforming Measures - Investment), the Articles of this Agreement specified in the "Obligations Concerned" element of an entry do not apply to the laws, regulations, rules, procedures, decisions, administrative actions, practices, or other measures identified in the "Description" element of that entry.
Entry No. I-1
Sector: All Sectors
Obligations Concerned: National Treatment (Investment) Market Access (Investment)
Measures: Companies Act 1993 Financial Reporting Act 2013
Description: Investment
1. Consistent with New Zealand's financial reporting regime established under the Companies Act 1993 and Financial Reporting Act 2013, the following types of entities are required to prepare financial statements that comply with generally accepted accounting practice, and have those statements audited and registered with the Registrar of Companies (unless exceptions to any of those requirements apply):
(a) any body corporate that is incorporated outside New Zealand ("overseas company") that carries on business in New Zealand within the meaning of the Companies Act 1993 and which is "large"; (1)
(b) any "large" New Zealand company in which shares that in aggregate carry the right to exercise or control the exercise of 25 per cent or more of the voting power at a meeting of the company are held by: (2)
(i) a subsidiary of a body corporate incorporated outside New Zealand;
(ii) a body corporate incorporated outside New Zealand; or
(iii) a person not ordinarily resident in New Zealand; or
(c) any "large" company incorporated in New Zealand which is a subsidiary of an overseas company. (3)
2. If a company is required to prepare financial statements and if they have one or more subsidiaries, they must, instead of preparing financial statements in respect of themselves, prepare group financial statements that comply with generally accepted accounting practice in relation to that group. This obligation does not apply if:
(a) that Company (A) is itself a subsidiary of a body corporate (B), where body corporate (B) is:
(i) incorporated in New Zealand; or
(ii) registered or deemed to be registered under Part 18 of the Companies Act 1993; and
(b) group financial statements in relation to a group comprising B, A, and all other subsidiaries of B that comply with generally accepted accounting practice are completed; and
(c) a copy of the group financial statements referred to in subparagraph (b) and a copy of the auditor's report on those statements are delivered for registration under the Companies Act 1993 or for lodgement under another Act.
3. If an overseas company is required to prepare:
(a) financial statements under the Companies Act 1993 it must also, if its New Zealand business meets the asset and revenue thresholds that apply in respect of "large" overseas companies, prepare, in addition to the financial statements of the large overseas company itself, financial statements for its New Zealand business prepared as if that business were conducted by a company formed and registered in New Zealand; and
(b) group financial statements under the Companies Act 1993, and if the group's New Zealand business meets the asset and revenue thresholds that apply in respect of "large" overseas companies, the group financial statements that are prepared must include, in addition to the financial statements of the group, financial statements for the group's New Zealand business prepared as if the members of the group were companies formed and registered in New Zealand.
Entry No. I-2
Sector: Agriculture, including services incidental to agriculture
Obligations Concerned: National Treatment (Cross-Border Trade in Services and Investment) Market Access (Cross-Border Trade in Services and Investment) Performance Requirements (Investment) Senior Management and Boards of Directors (Investment)
Measures: Dairy Industry Restructuring Act 2001
Description: Cross-Border Trade in Services and Investment
The Dairy Industry Restructuring Act 2001 ("DIRA") and Regulations provide for the management of a national database for herd testing data. The DIRA:
(a) provides for the New Zealand government to determine arrangements for the database to be managed by another dairy industry entity. In doing so the New Zealand government may:
(i) take into account the nationality and residency of the entity, persons that own or control the entity, and the senior management and board of directors of the entity; and
(ii) restrict who may hold shares in the entity, including on the basis of nationality;
(b) requires the transfer of data by those engaged in herd testing of dairy cattle to the Livestock Improvement Corporation or successor entity;
(c) establishes rules regarding access to the database and that access may be denied on the basis that the database's intended use could be "harmful to the New Zealand dairy industry", which may take into account the nationality or residency of the person seeking access.
Entry No. I-3
Sector: Communication Services Telecommunications
Obligations Concerned: National Treatment (Investment) Senior Management and Boards of Directors (Investment)
Measures: Constitution of Chorus Limited
Description: Investment
The Constitution of Chorus Limited requires New Zealand government approval for the shareholding of any single overseas entity to exceed 49.9 per cent.
At least half of the Board directors are required to be New Zealand citizens.
Entry No. I-4
Sector: Agriculture, including services incidental to agriculture
Obligations Concerned: Senior Management and Boards of Directors (Investment) Market Access (Investment)
Measures: Primary Products Marketing Act 1953
Description: Investment
Under the Primary Products Marketing Act 1953, the New Zealand Government may impose regulations to enable the establishment of statutory marketing authorities with monopoly marketing and acquisition powers (or lesser powers) for "primary products", being products derived from beekeeping, fruit growing, hop growing, deer farming or game deer, or goats, being the fur bristles or fibres grown by the goat.
Regulations may be issued under the Primary Products Marketing Act 1953 concerning a broad range of the marketing authority's functions, powers, and activities. In particular, regulations may require that board members or personnel be nationals of or resident in New Zealand.
Entry No. I-5
Sector: Air Transportation
Obligations Concerned: National Treatment (Investment) Senior Management and Boards of Directors (Investment) Market Access (Investment) Performance Requirements (Investment)
Measures: Civil Aviation Act 1990 Ministerial Guidelines
Description: Investment
Only a licensed air transport enterprise may provide international scheduled air services as a New Zealand international airline. Licences to provide international scheduled air services as a New Zealand international airline are subject to certain conditions to ensure compliance with New Zealand's air services agreements. Such conditions may include requirements that an airline is substantially owned and effectively controlled by New Zealand nationals, has its principal place of business in New Zealand, or is subject to the effective regulatory control of the New Zealand Civil Aviation Authority.
Entry No. I-6
Sector: Air Transportation
Obligations Concerned National Treatment (Investment) Senior Management and Boards of Directors (Investment) Performance Requirements (Investment)
Measures Constitution of Air New Zealand Limited
Description Investment
No one foreign national may hold more than 10 per cent of shares that confer voting rights in Air New Zealand unless they have the permission of the Kiwi Shareholder. (4) In addition:
(a) at least three members of the Board of Directors must be ordinarily resident in New Zealand;
(b) more than half of the Board of Directors must be New Zealand citizens;
(c) the Chairperson of the Board of Directors must be a New Zealand citizen; and
(d) the location of the Head Office of Air New Zealand, and its principal place of business, shall be in New Zealand.
Entry No. I-7
Sector: All Sectors
Obligations Concerned: National Treatment (Investment) Market Access (Investment) Performance Requirements (Investment) Senior Management and Boards of Directors (Investment)
Measures: Overseas Investment Act 2005 Fisheries Act 1996 Overseas Investment Regulations 2005