(a) imposes a limitation on:
(i) the number of 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 service transactions or assets in the form of numerical quotas or the requirement of an economic needs test; or
(iii) the total number of service operations or on the total quantity of service output expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test; (5) or
(b) restricts or requires a specific type of legal entity or joint venture through which a service supplier may supply a service.
Article 9.5. National Treatment
1. Each Party shall accord to services and service suppliers of the other Party treatment no less favourable than that it accords to its own like services and service suppliers. (6)
2. A Party may meet the requirement of paragraph 1 by according to services and service suppliers of the other Party, either formally identical treatment or formally different treatment to that it accords to its own like services and 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 services or service suppliers of the Party compared to like services or service suppliers of the other Party.
Article 9.6. Most-Favoured-Nation Treatment
Each Party shall accord to services and service suppliers of the other Party treatment no less favourable than that it accords to like services and service suppliers of a non-party. (7)
Article 9.7. Local Presence
Neither Party shall require a service supplier of the other Party to establish or maintain a representative office or any form of enterprise, or to be resident, in its territory as a condition for the cross-border supply of a service.
Article 9.8. Non-Conforming Measures
1. Articles 9.4 (Market Access) to Article 9.7 (Local Presence) 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;
(b) the continuation or prompt renewal of any non-conforming measure referred to in subparagraph (a); or
(c) an amendment to any non-conforming measure referred to in subparagraph (a) to the extent that the amendment does not decrease the conformity of the measure, as it existed immediately before the amendment, with Articles 9.4 (Market Access) to Article 9.7 (Local Presence).
2. Articles 9.4 (Market Access) to Article 9.7 (Local Presence) shall not apply to any measure of a Party with respect to sectors, sub-sectors, or activities, as set out by that Party in its Schedule to Annex II (Cross-Border Trade in Services and Investment Non-Conforming Measures).
Article 9.9. Payments and Transfers
1. Each Party shall permit all transfers and payments that relate to the cross-border supply of services to be made freely and without delay into and out of its territory.
2. Each Party shall permit transfers and payments that relate to the cross-border supply of services to be made in a freely usable currency at the market rate of exchange that prevails at the time of transfer.
3. Notwithstanding paragraphs 1 and 2, a Party may prevent or delay a transfer or payment through the equitable, non-discriminatory, and good faith application of its law that relates to:
(a) bankruptcy, insolvency, or the protection of the rights of creditors;
(b) issuing, trading, or dealing in securities, futures, or derivatives;
(c) criminal or penal offences;
(d) financial reporting or record keeping of transfers when necessary to assist law enforcement or financial regulatory authorities;
(e) ensuring compliance with orders or judgments in judicial or administrative proceedings; or
(f) social security, public retirement, or compulsory savings schemes.
Article 9.10. Subsidies
Notwithstanding subparagraph 3(d) of Article 9.3 (Scope):
(a) the Parties shall review the issue of disciplines on subsidies related to cross-border trade in services in the light of any disciplines agreed under Article XV of GATS, with a view to the incorporation of those disciplines into this Agreement, in accordance with Article 33.3 (Amendments - Final Provisions); and
(b) a Party which considers that it is adversely affected by a subsidy of the other Party related to cross-border trade in services may request consultations on those matters. The Parties shall subsequently enter into such consultations.
Article 9.11. Denial of Benefits
A Party may deny the benefits of this Chapter to a service supplier of the other Party that is an enterprise of that Party and to services of that service supplier if:
(a) a non-party or a person of a non-party owns or controls the enterprise; and
(b) the denying Party adopts or maintains a measure with respect to the non-party or the person of the non-party which prohibits transactions with the enterprise or which would be violated or circumvented if the benefits of this Chapter were accorded to the enterprise or to services of that enterprise.
Article 9.12. Recognition
1. For the purposes of the fulfilment, in whole or in part, of a Party’s standards or criteria for the authorisation, licensing, or certification of service suppliers, and subject to the requirements of paragraph 4, the Party may recognise the education or experience obtained, requirements met, or licences or certifications granted, in the territory of a non-party. That recognition, which may be achieved through harmonisation or otherwise, may be based on an agreement or arrangement with the non-party concerned, or may be accorded autonomously.
2. If a Party recognises, autonomously or by agreement or arrangement, the education or experience obtained, requirements met, or licences or certifications granted, in the territory of a non-party, nothing in Article 9.6 (Most-Favoured-Nation Treatment) shall be construed to require the Party to accord recognition to the education or experience obtained, requirements met, or licences or certifications granted, in the territory of the other Party.
3. If a Party is a party to an agreement or arrangement of the type referred to in paragraph 1, whether existing or future, the Party shall afford adequate opportunity to the other Party, on request, to negotiate its accession to that agreement or arrangement, or to negotiate a comparable agreement or arrangement. If a Party accords recognition of the type referred to in paragraph 1 autonomously, the Party shall afford adequate opportunity to the other Party to demonstrate that education or experience obtained, requirements met, or licences or certifications granted in that other Party's territory should be recognised.
4. Neither Party shall accord recognition in a manner that would constitute a means of discrimination between the other Party and a non-party in the application of its standards or criteria for the authorisation, licensing, or certification of service suppliers, or a disguised restriction on trade in services.
Article 9.13. Development Cooperation
1. Recognising the role that trade in services can play in economic development and poverty reduction, the Parties may engage in cooperative activities to support the participation of developing countries in trade in services.
2. Cooperative activities may include:
(a) participating actively in international fora in order to support the participation of developing countries in trade in services;
(b) sharing information and experiences and identifying best practices relevant to supporting that participation of developing countries in trade in services; and
(c) any other form of cooperation or activities as may be agreed between the Parties.
Article 9.14. Services and Investment Sub-Committee
1. The Services and Investment Sub-Committee, established under Article 30.9 (Sub-Committees – Institutional Provisions), shall be composed of government representatives of each Party.
2. The Sub-Committee shall:
(a) review and monitor the implementation and operation of this Chapter and Chapters 10 (Domestic Regulation) to Chapter 15 (Digital Trade);
(b) consider ways to further enhance trade and investment between the Parties, including through discussing future amendments to each Party’s Schedules to Annex I (Cross-Border Trade in Services and Investment Non-Conforming Measures), Annex II (Cross-Border Trade in Services and Investment Non-Conforming Measures), Annex III (Financial Services Non-Conforming Measures), and Annex 13A (Schedule of Commitments for Temporary Entry of Business Persons); and
(c) facilitate the exchange of information between the Parties in relation to the Chapters referred to in subparagraph (a).
3. The Sub-Committee may:
(a) make recommendations, or refer matters, to the Joint Committee;
(b) refer matters to any working group or any other subsidiary body related to the Chapters referred to in subparagraph 2(a); and
(c) consider any other matter related to the Chapters referred to in subparagraph 2(a), including matters referred to it by any working group or any other subsidiary body, or as directed by the Joint Committee.
4. The Sub-Committee shall meet one year after the date of entry into force of this Agreement, and thereafter as agreed by the Parties.
5. The Sub-Committee shall be co-chaired by representatives of each Party and hosted alternatively.
6. The Sub-committee shall report to the Joint Committee with respect to its activities.
7. All decisions and reports of the Sub-Committee shall be made by mutual agreement.
Chapter 10. DOMESTIC REGULATION
Article 10.1. Definitions
For the purposes of this Chapter:
“authorisation” means the permission to carry out any of the activities referred to in subparagraphs 1(a) and 1(b) of Article 10.2 (Scope), resulting from a procedure to which a person of a Party, as defined in Article 9.1 (Definitions – Cross-Border Trade in Services), must adhere in order to demonstrate compliance with licensing requirements, qualification requirements, or technical standards;
“competent authority” means a central, regional, or local government or authority, or non-governmental body in the exercise of powers delegated by central, regional, or local governments or authorities, which is entitled to take a decision concerning the authorisation; and
“economic activity” means any activity of an industrial, commercial, or professional character or activities of craftsmen, including the supply of services, except for activities performed in the exercise of governmental authority as defined in Article 14.2 (Definitions – Investment).
Article 10.2. Scope
1. This Chapter shall apply to measures of a Party relating to licensing requirements and procedures, qualification requirements and procedures, and technical standards affecting:
(a) cross-border trade in services by service suppliers of the other Party as defined in Article 9.1 (Definitions – Cross-Border Trade in Services); and
(b) the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of a covered investment in the form of an enterprise, as these terms are defined in Article 14.2 (Definitions – Investment), for the pursuit of the relevant economic activity.
As far as measures relating to technical standards are concerned, this Chapter shall only apply to those measures affecting trade in services.
2. This Chapter shall not apply to services or measures of a Party that are excluded from the scope of:
(a) Chapter 9 (Cross-Border Trade in Services) pursuant to paragraphs 3 to 5 of Article 9.3 (Scope – Cross-Border Trade in Services); or
(b) Chapter 14 (Investment) pursuant to paragraphs 3 and 5 of Article 14.3 (Scope – Investment).
3. This Chapter shall not apply to licensing requirements and procedures, qualification requirements and procedures, and technical standards pursuant to a measure:
(a) to the extent that the measure is not subject to Article 9.4 (Market Access – Cross-Border Trade in Services), Article 9.5 (National Treatment – Cross-Border Trade in Services), or Article 9.7 (Local Presence – Cross-Border Trade in Services) and is referred to in subparagraphs 1(a) to 1(c) of Article 9.8 (Non-Conforming Measures – Cross-Border Trade in Services); or to Article 14.5 (Market Access – Investment) or Article 14.6 (National Treatment – Investment) and is referred to in subparagraphs 1(a) to 1(c) of Article 14.10 (NonConforming Measures – Investment); or
(b) is referred to in paragraph 2 of Article 9.8 (Non-Conforming Measures – Cross-Border Trade in Services) or paragraph 2 of Article 14.10 (Non-Conforming Measures – Investment).
4. The Parties recognise their respective right to regulate and to introduce new regulation in order to meet government policy objectives.
Article 10.3. Administration of Measures of General Application
Each Party shall ensure that all measures of general application affecting trade in services or the pursuit of an economic activity are administered in a reasonable, objective, and impartial manner.
Article 10.4. Development of Measures
If a Party adopts or maintains a measure relating to authorisation, it shall ensure that:
(a) requirements which must be met in order to obtain, maintain, or renew an authorisation preclude a competent authority from exercising its power of assessment in an arbitrary manner and are:
(i) based on objective and transparent criteria; (1)
(ii) clear and unambiguous;
(iii) impartial;
(iv) made public in advance; and
(v) easily accessible;
(b) the procedures are impartial, accessible to all applicants, and adequate for applicants to demonstrate whether they meet the requirements, where those requirements exist;
(c) the procedures do not in themselves prevent the fulfilment of requirements; and
(d) those measures do not discriminate between men and women. (2)
Article 10.5. Submission of Applications
If a Party requires authorisation, it shall, to the extent practicable, ensure that its competent authorities avoid requiring an applicant to approach more than one competent authority for each application for authorisation, recognising that if an activity for which authorisation is requested is within the jurisdiction of multiple competent authorities, multiple applications for authorisation may be required.
Article 10.6. Application Timeframes
If a Party requires authorisation, it shall ensure that its competent authorities, to the extent practicable, permit submission of an application at any time throughout the year. If a specific time period for applying exists, the Party shall ensure that the competent authorities allow a reasonable period for the submission of an application.
Article 10.7. Electronic Applications and Acceptance of Copies
If a Party requires authorisation, it shall ensure that its competent authorities:
(a) to the extent practicable, provide for applications to be completed by electronic means, including from within the territory of the other Party; and
(b) accept copies of documents authenticated in accordance with the Party’s domestic law in place of original documents unless the competent authorities require original documents to protect the integrity of the authorisation process.
Article 10.8. Processing of Applications
1. If a Party requires authorisation, it shall ensure that its competent authorities:
(a) to the extent practicable, publish in advance an indicative timeframe for processing an application;
(b) confirm in writing (3) that an application has been received and, at the request of the applicant, provide without undue delay information concerning the status of the application;
(c) ascertain without undue delay the completeness of an application for processing under the Party’s laws and regulations;
(d) if the competent authorities consider an application complete for processing under the Party’s laws and regulations, within a reasonable period of time after the submission of the application, ensure that:
(i) the processing of the application is completed; and
(ii) the applicant is informed in writing of the decision concerning the application; (4)
(e) if the competent authorities consider an application incomplete for processing under the Party’s laws and regulations, within a reasonable period of time:
(i) inform the applicant that the application is incomplete;
(ii) at the request of the applicant, identify the additional information required to complete the application and provide guidance to the applicant to assist them in completing an application correctly; and
(iii) provide the applicant with the opportunity (5) to correct deficiencies,
(ii) at the request of the applicant, identify the additional information required to complete the application and provide guidance to the applicant to assist them in completing an application correctly; and
(iii) provide the applicant with the opportunity (5) to correct deficiencies,
however, if none of the above is practicable, and the application is rejected due to incompleteness, competent authorities shall ensure that they inform the applicant within a reasonable period of time; and
(f) if an application is rejected, to the extent possible, either upon their own initiative or upon request of the applicant, inform the applicant in writing and without delay of the reasons for rejection and the procedures for resubmission of an application. An applicant should not be prevented from submitting another application (6) solely on the basis of a previously rejected application.
2. Each Party shall ensure that:
(a) its competent authority grants an authorisation as soon as it determines that the conditions for authorisation have been met; and
(b) once granted by a competent authority, an authorisation enters into effect without undue delay, subject to the applicable terms and conditions. (7)
Article 10.9. Fees
Each Party shall ensure that the authorisation fees charged by its competent authorities are reasonable, transparent, based on authority set out ina measure, made public in advance, payable by electronic means, and do not in themselves restrict the supply of the relevant service or pursuit of the relevant economic activity. (8)
Article 10.10. Examinations
1. If a Party requires an examination for authorisation, it shall ensure that its competent authorities schedule the examination at reasonably frequent intervals and provide a reasonable period of time to enable applicants to request to take the examination.
2. To the extent practicable, ifa Party requires an examination for authorisation, it shall accept a request in electronic format to take that examination and consider the use of electronic means in other aspects of the examination process.
Article 10.11. Objectivity, Impartiality, and Independence
If a Party adopts or maintains a measure relating to authorisation, it shall ensure that the competent authority processes an application and reaches and administers its decisions:
(a) objectively and impartially; and
(b) in a manner independent from any service supplier or person pursuing an economic activity for which the authorisation is required. (9)
Article 10.12. Publication and Information Available
1. If a Party requires authorisation, the Party shall promptly publish the information necessary for persons pursuing or seeking to pursue the activities referred to in paragraph 1 of Article 10.2 (Scope) for which the authorisation is required to comply with the requirements, technical standards, and procedures for obtaining, maintaining, amending, and renewing that authorisation. Each Party shall ensure that this information is easily accessible through electronic means. Where it exists, that information shall include:
(a) contact information of relevant competent authorities;
(b) the requirements and procedures;
(c) fees;
(d) technical standards;
(e) procedures for appeal or review of decisions concerning applications;